MARIJUANA DUI IN PENNSYLVANIA

Despite Pennsylvania’s medical marijuana program and limited decriminalization of marijuana in some parts of the state, Pennsylvania maintains strict Marijuana DUI laws and penalties. When it comes to driving under the influence of cannabis, state police, local law enforcement and District Attorneys are continuing to prosecute Marijuana DUI offenses. However, a DUI lawyer with experience defending Marijuana DUI cases can analyze your case for potential issues that could lead to a dismissal or leniency on your charges.

“Per Se” Marijuana DUI Laws do not require proof that you were driving high!

A common misconception amongst those charged with a Marijuana DUI is that the Commonwealth must prove you are high, or that your driving was impaired. Although an arresting officer must have reasonable suspicion to believe you violated the vehicle code to stop your vehicle, and probable cause to arrest you for committing a DUI offense, police do not have to prove you were stoned or that your driving was erratic.

Section 3802(d)(1)(i) of the Motor Vehicle Code prohibits driving, operating or exercising physical control over the movement of a vehicle when there is any amount of a Schedule I controlled substance, or a metabolite of that substance in your blood. Pennsylvania and Federal Law classify Marijuana and related cannabis products as a Schedule I controlled substances.

For many individuals Marijuana can remain in your system for roughly 30 days. Therefore, the joint you smoked a week ago could lead to THC metabolites being found in your system.

How much THC must be in my system to be prosecuted for a “Per Se” Marijuana DUI case?

Pennsylvania Bulletin, Volume 34 Issue 7 sets forth a minimum threshold amount of controlled substances of their metabolites which must be present in order to prosecute an individual for a drug related DUI. For marijuana, the toxicology section report received from the testing laboratory must establish that you had at least 1 nanogram per milliliter (1 ng/ml) of Delta-9-carboxy THC, a metabolite of marijuana. Most crime laboratory reports reflect that the driver had more than 1 ng/ml of THC.

Marijuana DUI Charges Requiring Proof of Impairment

There are two Marijuana DUI charges that will require proof of impairment. Under Section 3802(d)(2) and 3802(d)(3), you can be found guilty of DUI if the Commonwealth proves beyond a reasonable doubt, that you drove, operated or exercised control over the physical movement of a vehicle, if:

  • You were under the influence of a drug, or combination of drugs, including Marijuana, which impair your ability to safely drive a vehicle.

  • You were under the influence of a combination of alcohol and drugs, including Marijuana and alcohol, which impair your ability to safely drive a vehicle.

With these offenses, the Commonwealth will be required to prove that your ability to safely drive a vehicle was impaired as a result of your Marijuana use alone, or in combination with other drugs or alcohol.

Clues of Impairment in a Marijuana DUI Case

In investigating your DUI, police officers and Drug Recognition Experts (DRE) are trained to look for certain clues of impairment, such as:

  • Erratic driving, such as swerving, weaving, driving too fast or slow based upon speed limits, or accidents;

  • An odor of fresh or burnt marijuana emanating from your person or vehicle;

  • Displaying bloodshot and glassy eyes, with or without dilated pupils;

  • Admissions to having recently smoked or ingested marijuana

  • Finding marijuana on your person or in your vehicle during the course of the DUI traffic stop;

  • Lack of physical coordination, confusion, euphoria or other behavioral traits consistent with recent marijuana usage;

  • Performance on eye examinations: Typical marijuana users who have not consumed drugs or alcohol will not display clues of impairment on the Horizontal and Vertical Gaze Nystagmus tests, but will display clues of impairment on the Lack of Convergence Test

  • Performance on Field Sobriety Tests (although many FSTS are designed only to detect alcohol impairment);

  • Increased pulse and blood pressure measurements, if taken by a DRE;

  • Presence of a “greenish tongue,” although there is no scientific evidence to support this assertion.

What if I refused blood testing for Marijuana?

If you refuse a blood test, your license will be suspended for either 12 months or 18 months depending on whether or not you’ve been convicted of a prior DUI offense, or you’ve refused chemical testing in the past. In this scenario, because you’ve refused blood testing, prosecutors cannot pursue a “per se” Marijuana DUI violation. However, you will be prosecuted for Marijuana DUI charges that require proof of impairment (i.e. under influence of drug impairing ability to safely drive).

What if I am a medical marijuana patient?

It is not a defense to a Marijuana DUI that you were a medical marijuana patient, as there was no exception or defense built into the law. It is still a crime to drive with more than 1 nanogram/milliliter of THC or cannabis metabolites in your system. Medical marijuana patients should use common sense and not drive a vehicle at all if they’ve used marijuana in a given day, regardless of whether or not they “feel high.” Some District Attorney’s Offices are declining prosecutions on Marijuana DUI cases where there is no active THC in the system. If you are a medical marijuana patient who had not used marijuana on the incident date, we encourage you to call us to discuss the possibility of a pre-trial withdrawal of your charges.

What are the possible penalties for my Marijuana DUI case?

All Marijuana DUI charges are considered highest tier offenses, which are the most severe DUI charges under Pennsylvania law. The potential penalties you face depend on whether or not you have any prior DUI convictions or ARD adjudications within 10 years from the date you are charged with your Marijuana DUI. These offenses carry serious penalties, as follows:

  • First Offense: Ungraded misdemeanor conviction carrying mandatory minimum jail sentence of 72 hours, 12-month driver's license suspension and mandatory minimum fine of $1,000.

  • Second Offense: First-degree misdemeanor conviction carrying mandatory minimum jail sentence of 90 days, maximum sentence of 5 years in prison, 18-month driver's license suspension, and mandatory minimum $1,500 fine.

  • Third Offense: Third-degree felony conviction carrying mandatory minimum jail sentence of 1 year in state prison, maximum sentence of 7 years in prison, an 18-month driver's license suspension, and mandatory minimum $2,500 fine.

Learn more about PA DUI Laws and Penalties here. 

Taking on your Marijuana DUI Case

If you are facing DUI charges where it was alleged that you smoked marijuana or used other THC products, it is important to secure experienced legal counsel as soon as possible. An experienced DUI attorney who has defended those facing marijuana charges can assist you in reviewing your paperwork, preparing a defense and speaking with prosecutors to pursue the best potential outcome given the circumstances.

Attorney Dave Zuckerman reluctantly prosecuted Marijuana related DUI cases as a former Allegheny County Assistant District Attorney. Attorney Zuckerman believes that most marijuana DUI cases are patently unfair, as most alleged offenders are often minimally impaired. Our firm believes strongly fighting for the best potential outcome for those accused of Driving Under the Influence of Marijuana.

For a free consultation, call our office at 412-447-5580 today!