On April 17, 2016, Governor Tom Wolfe signed the Pennsylvania Medical Marijuana
Act into law. The effective date of the new Medical Marijuana Act was May 17, 2016.
The passing of this law is a boon to those people suffering from several serious and
often debilitating medical conditions specifically defined in the act. Just recently,
Pennsylvania medical marijuana patients started signing up for the program, and
soon, medical marijuana will be available to dispense. Unfortunately, there are a lot
of misconceptions about what this law does and does not make legal. The biggest
problem with this law is that, as of now, it will lead to the creation of thousands of
criminals, or potential criminals, because the DUI laws covering drugs (DUID) in
Pennsylvania have not changed.
In Pennsylvania, marijuana and tetrahydrocannabinol (THC) are still listed as
Schedule I drugs. Our DUI laws, as mentioned earlier, have not changed. In
particular, the statutes relating to the presence of any amount of THC or its
metabolites whether you are impaired or not are still on the books. That is the most
sinister aspect of the DUID law in Pennsylvania. Although it will be legal for
authorized patients to ingest the legal forms of marijuana, once they take control of
a vehicle, they become instant criminals according to the terms of our DUID law.
It is without dispute that now, and in the future, our legislature and citizens will not
find it acceptable to drive while impaired by THC, whether it is prescribed or not, or
while impaired by any other legal or illegal drug for that matter. Nobody wants
impaired drivers on the road. The legislature’s main failure in drafting and passing
the Medical Marijuana Act was not changing the scheduling of approved forms of
marijuana to Schedule II drugs at the same time as the Act was passed. Especially
when it comes to the presence of 11-Nor-9-Carboxy-Delta-9-THC (THC-COOH) in a
person’s blood. 11-Nor-9-Carboxy-Delta-9-THC (THC-COOH) is also referred to as
Delta-9-Carboxy. It is well known that Delta-9-Carboxy has zero pharmacological
effect on a person. This is the compound that can be found in the bloodstream for
days as it is stored in the fat cells of the human body.
I am often asked questions about marijuana-based DUI cases, and I find that the
basic pharmacology of marijuana DUI cases is not well known. So, before I discuss
the legal issues of our new Medical Marijuana Act and how it relates to our DUI
laws, I believe a quick lesson in the pharmacology of marijuana and the use of
proper terminology is in order. A wise lawyer taught me long ago that when using
science to defend people charged with crimes, I always use the right terminology,
or the government witnesses will turn improper vocabulary around on you and
make you look bad even if they are saying absolute scientific garbage on the stand.
Remember, marijuana is a plant and our DUID laws do not cover marijuana. It is not
proper to say marijuana was found in your blood. What was found was THC and its
metabolites. Whether you are a medical marijuana patient or not, it is still illegal to
have any amount of THC or its metabolites in your blood so long as a minimum
detection level has been met or exceeded. The relevant compounds we are dealing
with are Delta-9-THC, 11-Hydroxy-Delta-9-THC (THC-OH)(Hydroxy), and 11-Nor-9-
When marijuana is smoked, vaped, or eaten, the first compound that is released
into the bloodstream is Delta-9-THC. Delta-9-THC is the pharmacologically active
compound in marijuana, and it has a very fast dose response curve. In layman’s
terms, it is what hits you right away and gets you high when marijuana is smoked,
vaped, or eaten. (Although when marijuana is eaten it is a more gradual high than
when smoked or vaped but an in-depth discussion of that is for another day.) Once
Delta-9-THC enters the bloodstream, it is broken down quickly into Hydroxy which
is an active metabolite but not nearly as pharmacologically active as Delta-9-THC.
Hydroxy breaks down rapidly into Carboxy which again has zero pharmacological
effect. Here is a practice pointer. Barring any analytical testing errors, if Hydroxy is
present in the bloodstream that is a clear indicator of recent usage.
As I said before, the Medical Marijuana Act is setting up medical marijuana patients
to become caught up in our criminal justice system because THC is still being listed
as a Schedule I drug. Until our legislature sees the error of its ways, and either
reschedules THC as a Schedule II drug or rewords Section 3802(d)(1), we must
aggressively litigate these cases. Here are two defenses that should prevail against
Section 3802(d)(1) charges.
The Overbreadth Defense
The issue of overbreadth of the DUID statutes in relation to THC was dealt with in
Commonwealth v. Etchison. In that case, the defendant argued that Section
3802(d)(1) of the DUID law was unconstitutionally overbroad. The Superior Court
ruled that the statute was not overbroad. Here is the key wording that the Superior
Court used in finding the statute was not overbroad, and it is also the key wording
to argue that Section 3802(d)(1) is now unconstitutionally overbroad in relation to defendants who are certified medical marijuana patients under the Medical
As our Supreme Court has explained, “[a] statute is ‘overbroad’ if by its reach it
punishes constitutionally protected activity as well as illegal activity.”
Commonwealth v. Barud, 545 Pa. 297, 305, 681 A.2d 162, 165 (1996). If it does not
reach both categories of activity, ‘then the overbreadth challenge must fail.’ Costa,
861 A.2d at 362. There is no constitutional right to the use of marijuana prior to
driving; indeed, under Pennsylvania’s Controlled Substance, Drug, Device and
Cosmetic Act, 35 P.S. § 780–101 et. seq., which has not been deemed
unconstitutional, an individual is prohibited from any use of marijuana. Thus,
Appellant’s challenge to 75 Pa.C.S.A. § 3802(d)(1) must fail.
Now our General Assembly has created legal uses for marijuana and THC. The
Medical Marijuana Law specifically sets forth the General Assembly’s policy on this
matter. In part, the General Assembly states that scientific evidence suggests that
medical marijuana is one potential therapy to mitigate suffering in patients, a
carefully regulated program will enhance patient safety and that the legislation’s
goal is to provide access to medical marijuana that balances the needs of patients
and promotes patient safety.
In Etchison, the Superior Court cited our Supreme Court’s decision in
Commonwealth v. Barud. I believe the Supreme Court’s two-prong analysis for
determining whether a statute is overbroad is met as applied to Medical Marijuana
Act patients. In fact, under the two-pronged test outlined in Barud, I would argue
that Section 3802(d)(1) charges in relation to THC are unconstitutional to people
who consume marijuana illegally now. However, a defendant with THC in their
system should not be challenging the constitutionality of this statute. It should be a
defendant who is a registered medical marijuana user whose case should be the
first challenge Section 3802(d)(1) under the new law.
The second defense comes from some recent case law. There have been two cases
decided in early 2020 that in combination say that if a medical Marijuana Patient is
complying with the Medical Marijuana Ac then the THC in your system is not
schedule one and thus not an automatic DUI. That goes for the metabolites as well.
What does complying with the Medical Marijuana Act mean? It means using edibles
or vaping and keeping your medicine in its original packaging from the dispensary.
No smoking the leaf in a pipe or bong and storing and transporting medical marijuana in anything other than what it was packaged in when leaving the
The Medical Marijuana Act is currently a blessing and a curse. It is a blessing, in that
it brings Pennsylvania out of the dark ages in terms of modern science’s
understanding of the medicinal properties of marijuana. It will also allow our sickest
citizens to come out of the dark and obtain their marijuana legally and avoid the
dangers of illegal marijuana purchased on the street. It will also save our sickest
citizens from marijuana possession charges. However, it will make them violators of
our DUI laws which are worse and have more collateral consequences than
marijuana possession charges. Until our DUID laws change, either through the
aggressive defense of the citizens accused or our legislature waking up and
realizing that the DUI laws need to be modified, medical marijuana patients are in
serious jeopardy of criminal and collateral consequences under this new law.