Up in Smoke

by Jenna Fliszar

On April 16, 2016, Governor Wolf signed legislation legalizing the use of marijuana for medical purposes in Pennsylvania. It is expected that it will take up to 18 months for the program to be up and running. Once it is, patients with certain medical ailments will be able to legally use marijuana. Unfortunately for them, they will not be able to legally drive.
Marijuana, whether used for medical purposes or otherwise, is listed as a Schedule I controlled substance. Pennsylvania’s DUI law states that anybody who drives with any amount of a Schedule I controlled substance in their bloodstream is guilty of Driving Under the Influence. The driver does not need to be impaired by the drug; the wording of the statute allows for a conviction when the substance is merely present in the driver’s bloodstream.

Marijuana is a drug that can linger in a person’s bloodstream for as long as 30 days. As a result, it is possible for a driver to be charged with DUI even if they have not used marijuana recently and even if they are not actively under the influence of the drug.
What does all this mean for medical marijuana users under the new law? It means that patients who are legally prescribed marijuana and are using it as prescribed are at risk of being charged with DUI at any time.

Obviously, patients should not and cannot drive impaired. However, because of the wording of the statute, even when not impaired, they are at risk of being charged with a crime simply for doing something they are legally allowed to do.
In order for patients to be able to take advantage of the new medical marijuana law without fear of DUI charges, one of two things needs to happen. One solution would be to reclassify marijuana.

As long as marijuana is a Schedule I controlled substance, users will be at risk of DUI under the current law. If marijuana was reclassified as a Schedule II, III, or IV controlled substance, authorities would need to show impairment in addition to presence, making it possible for legal users to use marijuana and avoid a DUI charge. The DEA is expected to make a decision on reclassification later this year.

If marijuana is not reclassified, the Pennsylvania legislature would need to take action to change the DUI law to allow for an exception for medical marijuana. Currently, in order to be charged with DUI when a Schedule II or III drug is found in a driver’s bloodstream and the driver has a valid prescription for that drug, the state also has to prove that the driver is impaired. It would make sense to create an exception for medical marijuana that matches the language of the subsection related to Schedule II and III drugs. This change would allow patients who are legally able to use marijuana to legally drive when they are not impaired.

It is clear that the legalization of medical marijuana creates a myriad of complicated legal issues. It remains to be seen how authorities and the legislature will deal with the many issues that are expected to arise.

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