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Spotlight Issue: What does the legalization of medical marijuana mean for DUI law in Berks County?

by | Jul 27, 2018 | Child Custody, Criminal Law, DUI, Family Law, Uncategorized |

Pennsylvania legalized marijuana for limited medical purposes in August of 2016 and dispensaries are now operating. Although the law has been passed, there is still much work to be done in order to implement the program and to ensure that medical marijuana usage is legal and safe. One area in which there is a still a question about the legality of medical marijuana is Pennsylvania DUI law. Currently, marijuana is classified as a schedule I drug which means that it has been determined to have no legitimate medical usage. Obviously that is no longer an appropriate classification based on the current law. However, the outdated classification continues to leave Pennsylvania DUI law in limbo.

Section 3802(d) of the Pennsylvania DUI code criminalizes driving with any amount of a Schedule I drug or the metabolite of any Schedule I drug in the driver’s blood. There is no requirement that there be evidence of impairment for a conviction under this section – but evidence of impairment is required for other sections. Of course police cannot test a driver’s blood without a sufficient basis to believe that he or she is driving under the influence of drugs or alcohol, but as long as that standard is met, the mere presence of marijuana or its metabolite is sufficient for a DUI conviction (amount in the blood must exceed 1ng/ml for tests results to be admissible in court). Notably, there is no exception made for those drivers who are legally prescribed medical marijuana. Compare this to a legal prescription for a medicine such as Xanax. The mere presence of Xanax in a driver’s blood is not a crime. Instead, there must be evidence that the driver is impaired because of the medication. Arguably, that is how medical marijuana should be treated as well.

Pennsylvania State Police have publicly raised this discrepancy, but Pennsylvania lawmakers have yet to act. This area of the law will undoubtedly change at some point, but it may be too late for some drivers. Conviction for a first offense under 3802(d) – a controlled substance DUI – is a mandatory 72 hours of incarceration.

If you’ve been charged with a DUI in Berks County, especially if that DUI involves driving with THC in your blood while you had a valid prescription for medical marijuana, you need to consult with a knowledgeable DUI attorney to discuss your options. Contact our Reading, DUI lawyers at 610-372-5128 or email us at [email protected]



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