Gambone Law - July 2019

Gambone Law

Licensed in Pennsylvania and New Jersey


July 2019

What Patients Face if They Choose to Utilize and Drive Marijuana Legalized as Medical Treatment

CHEMICAL TESTS In Paragraph 2 of Section 3802(d)2, the Commonwealth is required to establish that an individual was under the influence of a drug to a degree that impaired their ability to drive safely beyond a reasonable doubt. To prove this, the prosecution doesn’t need a chemical test as evidence. To obtain the charge, the prosecutor can acquire a conviction from the testimony of the arresting officer, who can testify to an individual’s physical presentation following their arrest. One hot topic in DUI defense cases is the admissibility of blood evidence. Pennsylvania courts across the Commonwealth began excluding blood evidence even if the individual consented to the blood draw. This choice was made after the decision of the U.S. Supreme Court in Birchfield v. North Dakota, where the Court realized the police needed to obtain a search warrant to get a person’s blood. Many prosecutors argued that consent eliminated the need for the warrant, but consent for a blood test became virtually unconstitutional following this case, as it violated a person’s Fourth Amendment protection against unreasonable searches and seizures. POTENTIAL PROBLEMS FOR MEDICAL MARIJUANA PATIENTS When a person who is taking legally prescribed drugs faces charges, they also face a strict liability charge. This means that the Commonwealth only has to establish that the motorist was actually driving or in operation of the vehicle while a Schedule I controlled substance or nonprescribed drug was in their system at the time. A medical marijuana patient is potentially guilty of a DUI if they are stopped for some unrelated traffic offense and the police officer discovers the motorist has used or is currently taking medical cannabis. However, this particular scenario is highly unlikely if the office had no reason to suspect the motorist, unless the motorist informs the officer that they recently consumed medical cannabis under the mistaken belief that it could help explain the reason for the stop. I advise my clients to be respectful of the police but never volunteer any information and never answer any questions the officer poses following the stop. For more advice or information, I recommend visiting my website, where you can download two free books on DUI defense in Pennsylvania.

Governor Wolf signed the Medical Marijuana Act on April 17, 2016, legalizing cannabis as a medical treatment. In a little over three years, the Commonwealth has awarded approximately 25 grower processor licenses and 50 dispensary licenses through the Department of Health.

While this act addressed many concerns about the medical administration of cannabis, those utilizing this treatment must understand that Pennsylvania still classifies cannabis as a Schedule I controlled substance. Under this classification, patients are still at risk for criminal prosecution under the Pennsylvania traffic code for a DUI of a controlled substance charge. Under the Pennsylvania traffic code, a person may not operate or be in actual physical control of a vehicle if there is any amount of substance involved. IMPORTANT FACTS Pennsylvania doesn’t distinguish between legal and illegal drugs or narcotics. Many people may think a DUI charge is specifically reserved for individuals who have consumed alcohol or illegal substances, such as cocaine or heroin. This is untrue. Medical marijuana patients must understand that if they choose to drive while utilizing their legal drug treatment, they risk a possible DUI arrest and conviction. Depending on how severe the charge, punishment can include mandatory jail time, license suspension, fines, and increased insurance rates.

–Alfonso Gambone

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