Driving under the Influence of Marijuana and the state of the law

Here in Pennsylvania, medical marijuana is about to become legal, so clearly our legislature will have to address that with the DUI laws which currently prohibits any amount of marijuana to be in your blood when you drive, even if you smoked it weeks earlier. So far, they’ve done nothing. It may take a few appeals from defense attorneys like me before that happens.

Years ago, that law was challenged but the Pennsylvania Supreme Court held that since marijuana was illegal, and since driving is a privilege and not a right, that you could be charged even if the amount in your system was minimal.marijuana-laws

I’ve been waiting for a client to come in and tell me she smoked in Colorado or somewhere else where it’s legal and then got pulled over in Pennsylvania days later and charged with a DUI for marijuana. I could then argue that the first part of the argument for our DUI laws was invalid because the marijuana was legal at the time smoked.

Realistically, though, if you’re not under the influence of it days later, you probably wouldn’t get pulled over anyway since you’re not showing any signs of being under the influence. A cop can’t demand you take a blood test without some sort of reasonable suspicion that you’re under the influence, even if you look like a stoner.

Where it still comes into play, though, is in situations like this: Let’s say you have had a beer and the cop smells alcohol on your breath and then makes you take a blood test. The blood test shows that your Blood Alcohol Count is .07% which is legal and under the DUI limits but the test also shows a presence of marijuana that you smoked days earlier. Now he can charge you, and in Pennsylvania the presence of drugs carries a harsher penalty than just alcohol. Technically and scientifically, you were “under the influence” of neither but legally, you were for marijuana. And that’s where the problem lies.

Remember that even when marijuana becomes legal, it will still be illegal to drive under its influence. Hell, it’s illegal to drive under the influence of cough syrup if it affects your driving.

Even in Colorado, you can’t drive while under the influence. However, their law (as I understand it) says what the limits have to be in your system, just like the law does now with alcohol. A small amount isn’t enough.

I bring this all up because of a recent decision in Arizona that held that simply having marijuana in your system is insufficient for a DUI conviction absent a showing of some sort of driving impairment. In other words, even if the amount shows that you just smoked it, if there is no evidence that your driving was impaired, you can’t be charged.  (This is unlike the “per se” alcohol laws that say if you have more than .08% in your system you can be charged even if your driving was perfect.)

Ironically, I have mixed feelings on this, as I have previously argued in favor of lowering the Blood Alcohol levels from .08% to .05% as it is in most of the rest of the world (as long as the penalty is non-criminal and minor). I personally believe that there should be a level for marijuana as well, even though I don’t know what that level should be.

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