Pennsylvania, which has legalized medical marijuana, has introduced a bill that would exempt medical marijuana users from the state’s arbitrary per se marijuana DUI law.
Although Pennsylvania legalized medical marijuana in 2016, with dispensaries opening up in the state in 2018, laws still remain on the books that would arbitrarily punish medical marijuana users merely for having THC in their system, even though they are no longer “high.” The new bill aims to close that loophole.
Prior to Pennsylvania’s legalization of marijuana for medical purposes, it was illegal to have any THC in a driver’s system while driving. At the time, the law did not conflict with itself because it was illegal to have any THC in the system because marijuana use, as a whole, was illegal. Thus, it did not matter whether a driver was still high or not; if they had THC in their system, it was illegal because all marijuana use was illegal.
Since the state has now legalized medical marijuana, at a minimum, those laws cannot remain on the books. Otherwise, it is possible for a legal medical marijuana to be arrested, charged, and convicted of a DUI in the state even though they haven’t smoked in days, possibly even weeks, and are perfectly sober when pulled over for that DUI.
Unlike alcohol, the intoxicating chemical of marijuana, tetrahydrocannabinol or “THC,” can possibly stay in a person’s system for weeks. Also, unlike alcohol, THC levels do not necessarily correspond to how intoxicated or high a person is. Science suggests that when a person has a blood alcohol content of 0.08 percent, they typically are at a level of intoxication that would make it unsafe to drive. This is why it is illegal to drive while under the influence and with a 0.08 percent (0.05 in Utah). It is dangerous to society when people drive when they are under the influence, or when their blood alcohol content suggests that they are “under the influence.” No such scientific correlation exists between THC and degree of intoxication from marijuana use.
Therefore, when Pennsylvania legalized medical marijuana, it put every single user of medical marijuana at risk of an arbitrary DUI by not also updating its DUI laws. It was possible for a cancer patient to smoke marijuana on Monday, become sober by Tuesday, remain sober for the rest of the week, and then get arrested for a DUI on Sunday simply because they still had THC in their system (as a result of taking prescribed medicine for cancer!).
Pennsylvania’s new law would require police and prosecutors to prove that a medical marijuana user was actually impaired while driving rather than merely proving that the person had used marijuana sometime in the past.
“We need to ensure that the legal use of this medicine does not give rise to a criminal conviction,” state Sen. Camera Bartolotta (R), who introduced the legislation, said in a statement about her bill. “Patients fought tooth and nail for years to see the use of medical cannabis legalized to treat a variety of terrible health conditions. They should have the peace of mind to know that they will not be punished later for using their prescriptions responsibly.”
Although some states still have per se limit laws for THC, like they do with alcohol (0.08% BAC in all states except Utah where it is 0.05%), a 2019 study, published in the journal Addiction by a team of Canadian researchers, found that drivers who had 2-5 nanograms of THC per milliliter of blood (the level of some states’ per se laws) were no more likely to cause a crash than people who had not consumed marijuana.
“Given the very serious consequences of a DUI conviction, my legislation will provide critical protections for medical cannabis patients by ensuring responsible use of their legal medicine does not give rise to a criminal conviction,” said Bartolotta.
My response: It’s about time. Until states can figure out a way link THC levels (or any other quantifiable measure) with intoxication, per se laws DUI laws for marijuana usage in states that have legalized it are unconstitutional.