Court Rules PA DUI Can Be Based Upon Kratom Impairment

Posted in DUI on March 18, 2026

The Pennsylvania Superior Court clarified that a driver may be prosecuted under Pennsylvania’s DUI statute even when the substance involved is not a controlled substance. In Commonwealth v. Walsh, 2026 PA Super 47, the Court reversed the dismissal of DUI charges stemming from alleged impairment caused by kratom and caffeine.

Factual Background

The case arose after police stopped Walsh for erratic driving. During the stop, the officer observed signs of impairment, such as constricted pupils, agitation, and difficulty speaking. Walsh refused field sobriety testing. Police recovered multiple bottles of kratom, and subsequent blood testing revealed the presence of mitragynine (the active compound in kratom) and caffeine. Walsh was charged with DUI under 75 Pa.C.S. § 3802(d)(2) (drug-based impairment) along with summary offenses.

Key Legal Issue

Walsh’s PA DUI lawyer filed a pretrial motion to dismiss the DUI charge because he did not have any controlled substances in his blood. He only had kratom and caffeine, which are not controlled substances. His argument was that the DUI only prohibited a person from having a controlled substance in their blood and not simply having any “drug”. 

Superior Court’s Holding

The Superior Court reviewed the DUI statute, and 75 Pa.C.S. 3802(d) references “controlled substances” in the title.  Section (d)(1) also discusses that it applies to controlled substances.  However, 75 Pa.C.S. 3802(d)(2) prohibits a person from being “under the influence of a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive, operate or be in actual physical control of the movement of the vehicle.” 

The Superior Court noted that the legislature clearly knew the difference between a controlled substance and the broader term of drug, and the use of the phrase “drug or combination of drugs” evidenced an intent to prohibit the use of drugs generally and was not limited to controlled substances. If the legislature meant to limit (d)(2) to controlled substances, it would have said so.

Practical Implications

The decision affirms prior PA DUI court rulings that allowed convictions based upon non-controlled substances, such as gasoline. The prosecutor must still link the use of the drug to impairment in order to obtain a conviction. DUI defense attorneys may need to consult with a forensic expert to determine whether or not the driver appeared to be impaired by the drug.  Anyone charged with a DUI should retain an experienced DUI attorney to have the case reviewed and to provide representation.