How does the New PA DUI Law (2018) affect marijuana related DUI charges in Pittsburgh, Pennsylvania? In short, it does not – and this a major problem from a Constitutional standpoint.
A history on the Pennsylvania Law regarding Marijuana Related DUI
Title 75 Sec 3802(d)(1) states that
An individual may not drive operate or be in actual physical control of the movement of a vehicle under the following circumstances. (1) There is in the individual’s blood any amount of a: (I) Schedule I controlled substance. . . (iii) metabolite of a substance under subparagraph (I). . .
As Marijuana is a schedule I controlled substance under the relevant Statute this means that having any amount of either the active ingredient of Marijuana or the metabolite of marijuana while driving constitutes a DUI in Pennsylvania. A metabolite is what one’s body produces when it processes Marijuana. Most studies show that the metabolite of Marijuana can remain in a user’s system for 30 days or more depending on the individual. Thus, a person can ingest marijuana and be charged with DUI days, or even weeks, later despite no longer being under the influence. The new Pennsylvania DUI Law did not change this section of the DUI Statute at all.
This section of the DUI Statute was attacked as being unconstitutional prior to MMJ being Legal in Pennsylvania. In Com v. Etchison, 916 A.2d 1169 (Pa. Super 2007). The appellant, who had been charged, among other DUI offenses, with marijuana metabolite related DUI argued that the DUI Statute was unconstitutionally vague. He argued that the PA DUI Statute does not differentiate between someone who is actually under the influence at the time of driving and someone who may have ingested marijuana at an earlier date and was no longer under the influence.
In that case, an expert witness testified that
[w]ithout a blood test, a person may be unaware they have metabolites in their blood. Section 3802(d) allows for the conviction of an individual based solely on the presence of metabolites, regardless of actual impairment․ An individual could be sober and simply have residue of past usage in their blood․ Passive inhalation of marijuana smoke, false positives or residue in the body long after a period of impairment would all be a violation of the statute. The statute sweeps too broadly and causes conviction of both sober as well as impaired drivers.
Despite this the Etchison Court held that the Statute was constitutional. It is interesting to note that the dissenting opinion in that case pointed out that
The Majority contends that Appellant’s overbreadth challenge must fail because “there is no constitutional right to the use of marijuana prior to driving; indeed, under Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act, ․ an individual is prohibited from any use of marijuana.” Majority Memorandum, at 6. The Majority’s blanket statement fails to consider the fact that metabolites of marijuana can appear in one’s system without the unlawful usage of marijuana and through both voluntary and involuntary consumption of marijuana. One such voluntary consumption of marijuana could occur while traveling abroad, in countries where marijuana usage is legal, such as the Netherlands. Since marijuana can stay in one’s blood for up to a month or more, one could travel to Amsterdam, partake of legal cannabis products and return to Pennsylvania. As the statute is currently constructed, such tourists will almost certainly violate the DUI law should they drive home from the airport, despite the fact that they are in no way impaired at the time of their driving.
The dissent concluded that
In my opinion, punishing mere presence in one’s blood of metabolites of Schedule I drugs, without proof of impairment, like in Stanley, goes too far. Pennsylvania has a legitimate interest in keeping impaired drivers off the road. However, the mere presence of metabolites, without impairment, punishes a status only and bears no relationship to the legitimate interest of the state in keeping the roads safe. Moreover, it could punish individuals whose blood bears metabolites through lawful behavior. As such, I believe that, as drafted, subsection 3802(d)(1) is unconstitutional and, therefore, Appellant’s conviction under this subsection must also be reversed.
Thus, under Etchison it is still illegal to drive with the metabolite of marijuana in your system as the new Pennsylvania DUI Law did not correct this portion of the Statute.
What is the effect of Legal Medical Marijuana on the ruling in the Etchison case?
First, let me point out that it is my personal belief that the holding in Etchison was incorrect even prior to legal MMJ in Pennsylvania. As the dissent pointed out, making driving with marijuana metabolites in one’s system illegal bears no rational relationship to the purpose of the Pennsylvania DUI Statute – to protect against driving under the influence.
Now that medical marijuana is legal in Pennsylvania, I would argue that even the Etchison case no longer holds precedential value as the reasoning of the Court is no longer true. In fact, under Etchison, and the current PA DUI Law, a legal medical marijuana user can never legally drive as he/she will almost certainly always have the metabolite in his/her system. This is true whether the person is actually under the influence of marijuana at the time of driving or not.
In my opinion, this is outrageous and this problem must be fixed by the Pennsylvania Legislature or, if necessary, by the Pennsylvania Courts. Further, PA District Attorney’s offices should recognize this constitutional flaw and adopt an “impairment” standard in their prosecution of marijuana related DUI cases.
Despite the unfairness, and unconstitutionality, of the current law please be aware that if you use medical marijuana in Pennsylvania you may be charged with DUI at any time despite not being under the influence. I am always happy to offer a free consultation if you find yourself in this unfortunate situation.