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 doesn’t 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 tetrahydrocannabidols (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 in relation 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-Carboxy-Delta-9-THC (THC-COOH)(Carboxy).
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 have to 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 Marijuana Law:
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 set forth 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 the medical marijuana in anything other than what it was packaged in when leaving the dispensary.
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 aggressive defense of the citizen 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.