Medical marijuana poses a new DUI dilemma
Medical marijuana has been legal in Pennsylvania for over a year now. Yet for many, there are still plenty of unanswered questions about the law and its impact on those who will choose to use the prescription products once they hit the market.
One such question focuses on Pennsylvania’s current driving under the influence law. Experts say motorists with a legal prescription for medical marijuana can still face DUI charges if their blood tests positive for the chemical compound Tetrahydrocannabinol, or THC, which is found in marijuana. Yet many also agreed lawmakers in Harrisburg should amend the current DUI laws to reflect the changing times.
DUI law
Even with the new state medical marijuana law on the books, federal law is clear when it comes to driving with any amount of THC in your system, said Ryan Sarkowski, a spokesman for Pennsylvania State Police.
“Medical marijuana remains a schedule 1 controlled substance in Pennsylvania,” he said. “It’s going to stay that way until the federal Drug Enforcement Agency changes the classification. So that means that there is no acceptable amount of THC in somebody’s blood. Somebody could be arrested and charged with DUI for any amount of THC in the blood.”
That said, Sarkowski conceded it would be up to a district attorney to decide whether to prosecute a case.
Criminal defense attorney Adam Sager said if a person can show they have a valid prescription for medical marijuana, it could be an exception to DUI law. He recommended someone carry a copy of their prescription with them at all times. He said if a motorist doesn’t have their prescription on them and gets charged with DUI, they could still show they have the prescription as a defense during a court hearing. However, their blood test had better show the amount of medical marijuana in their system was within the prescribed dosage by a doctor.
State and local officials agreed even with a legal prescription for medical marijuana, there’s no excuse for impaired driving.
“If someone’s driving is impaired, they’re putting themselves and everyone else in danger. They can be charged with a DUI,” said Joe Grace, a spokesman for the Pennsylvania Attorney General’s Office. “While alcohol, prescription medications and medical use of marijuana can be legal, driving with these substances in your system puts lives at risk and is against the law.”
Upper Darby Police Superintendent Michael Chitwood said that making an even obvious DUI arrest has become increasingly difficult as more requirements are heaped on officers in the field.
“Years ago when someone was arrested for DUI, it was simple,” he said. “Officer’s observation – can he walk, can he talk, can he touch his nose, you know. Simple. Now I read some of the reports that officers have to write – the testing that they have to go through, the credentials that they have to have – and instead of protecting the public in general, the people who become victims … the laws are geared in such a way that for police offices to do their jobs, they almost have to have PhD’s.”
Chitwood said the regulations already in place have had the opposite effect of protecting the public and now protect defendants more than victims. The introduction of medicinal marijuana is only likely to make the job even more difficult, he said.
“It presents a problem, because now you’ve got to have case law, now you’ve got to figure out how to do it, now you’ve got to figure out how to administer punishment … and I think it makes it more difficult for the men and women who enforce the laws to do it,” he said.
Chitwood said he has not personally talked to police chiefs in states where medical marijuana has already been introduced, but has read articles about enforcing DUI laws in those areas. Pennsylvania, though, remains a question mark.
“I guess you would have to treat medical marijuana the way you would any drug, any pill, if they’re inebriated, but what’s the threshold?” he said. “What’s to say you’re not different than me if we both have one of the 17 diseases or issues that can be treated through medical marijuana? So I think there’s a whole kind of response that has to be (developed) and I don’t know what the answer is.”
Still, many agreed that work needs to be done in Harrisburg to address the medical marijuana legalization and other court rulings that have impacted enforcements of DUI laws.
“Medical marijuana remains a schedule 1 controlled substance in Pennsylvania. It’s going to stay that way until the federal Drug Enforcement Agency changes the classification. So that means that there is no acceptable amount of THC in somebody’s blood. Somebody could be arrested and charged with DUI for any amount of THC in the blood.” — Ryan Sarkowski, a spokesman for Pennsylvania State Police
Need for change
“The Legislature still has to address it,” said Charles A. Gaza, chief of staff of the Chester County District Attorney’s office. It’s legal to operate a vehicle when alcohol and prescription drugs are taken under the advice of a therapeutic range. Given medical marijuana products will be considered a prescription medication DUI law would have to reflect that. “We’ll see how things move forward.”
In September 2016, Montgomery County District Attorney Kevin R. Steele testified before the Pennsylvania House Transportation Committee about DUI prosecution issues, specifically drugged driving.
Regarding the legalization of medical marijuana products he said Harrisburg will have to amend “the current law to include the provision of “non-prescribed Schedule I drug” to accommodate those who present with a valid medical marijuana identification card.”
The law will also have to address the issue of what marijuana level constitutes impaired driving, regardless of whether a person has a legal prescription. “While the medical marijuana patient who is driving impaired would be able to be prosecuted for DUI under the general impairment classification,” he said, “it would be helpful to have a set level that distinguishes one from the other.”
Steele began his testimony by comparing alcoholrelated DUI arrest statistics from 2006 and 2015, which showed that about the same number of arrests had taken place, if not gone down in Montgomery County.
“In 2006, 2,471 cases were prosecuted versus 2,247 in 2015,” he said. “So, in actuality, about the same number of DUI alcohol cases, with a slight down tic.”
However, with drug-related or drug and alcohol-related DUI arrests have actually increased significantly.
“In 2006, there were 1,067 cases. In 2015, that number was 1,751,” he said. Many of those cases were directly connected to the rampant opioid epidemic that has hit the area.
(The) danger to the community is always at the forefront of any DUI prosecution,” said Steele, “thus, one of the primary goals of a DUI prosecution is to get the unsafe driver off the road and stop him or her from continuing to drive under the influence.”
What’s made that more difficult recently is the U.S. Supreme Court Decision Birchfield v. North Dakota, which addressed blood and breath tests in DUI stops.
“The court ruled that a blood test was inherently intrusive and was not justified by governmental interests,” Steele said, “unless obtained through a valid search warrant, exigent circumstances or voluntary consent.”
Steele said the short term impact of the ruling is the immediate suppression of thousands of consensual blood samples that at the time of the blood draw were legally obtained. Whether a driver’s blood alcohol content was at the legal limit of 0.8 or was much higher, “prosecutors are left with just one charging option — DUI/General Impairment. That’s the lowest tier of DUI, which carries no jail time at sentencing and no license suspension.”
In the long term, a DUI defendant has what Steele called a “huge loophole.”
“Under current law, police have a two-hour window from the time of the stop to get a blood sample, which presents a barrier when a search warrant is required,” he said. “Delaware, by comparison, has a fourhour time frame from the time of driving to the time of testing. Extending Pennsylvania’s window would give police time to obtain proper search warrants for the needed blood evidence.”
With alcohol-related DUI cases, the new ignition interlock law—set to go into effect Aug. 25, 2017, requires a driver to breath into a device to measure whether they’ve been drinking. It will allow first time DUI offenders to continue driving, allowing them to go to work and perform daily activities, while reinforcing sober driving. However, Steele said there’s a loophole in the law in that the ignition interlock system can’t test for chemical impairment.
“So a person high on marijuana, cocaine, fentanyl, heroin or whatever drug will pass the ignition interlock blow test,” he said. “The fix that is needed is for offenders who incur a license suspension for DUI-drugged driving should not be eligible for the ignition interlock program.”
Lawmakers weigh in
State Rep. Warren Kampf, R-157, and state Sen. Andy Dinniman, D-19, have heard the complaints about the current DUI laws and medical marijuana and generally agree that changes are necessary. What specific changes need to be
done, though, is a different question.
Kampf said there’s still time to make changes to the DUI law before medical marijuana products go out on the market to “accommodate what the medical marijuana law is intending to do. I think we’re going to do that.”
The idea he’s heard from his colleagues in Harrisburg would be to change to the DUI law to mirror what the state allows other nonschedule 1 prescription drugs to do, which is to create an impairment standard rather than a strict liability.
“(The drug) may be in your system but that may be residual,” he said. “Under the DUI law that’s a violation as currently drafted. So I think there’s still time. It’s not up and running yet.”
Kampf them made clear whether the drug was prescribed or not, “we don’t want someone traveling on the roadways impaired.”
Dinniman said before the Legislature makes any move, he’d like to hear from Medical Marijuana Advisory Board. The board includes the Secretary of Health; the Physician General; State Police Commissioner; Chair of the State Board of Pharmacy; Commissioner of Professional and Occupational Affairs; President of the Pennsylvania Chiefs of Police Association; President of the Pennsylvania District Attorneys Association; members to be appointed by the governor and six appointees from the legislative caucuses who are knowledgeable and experienced in issues relating to care and treatment of individuals with a serious medical condition, geriatric or pediatric or clinical research. Based off of their findings, the Legislature could make informed decisions about how best to answer some of these unanswered questions.
Secondly, Dinniman suggested looking to other states that have had marijuana laws on the books, to see what has worked for them that might work here.
He further said that now that medical marijuana is a prescription drug, it needs to be treated the same way, which includes putting warning labels on products.
As lawmakers sift through solutions to these unanswered questions, Dinniman offered words of wisdom to those thinking of purchasing medical marijuana products.
“My advice has to be for your own protection do not drive until you know the impact of any prescription including medical marijuana,” he said. “Don’t assume what the impact will be (the same as) what happens the first time you take something. It’s not worth taking a chance.”