I currently have an appeal pending in the Pennsylvania Superior Court regarding our DUI laws as they relate to the presence of marijuana in one’s system. The Pennsylvania ACLU has joined my appeal.
Here’s the press release my law office has prepared:
The current DUI law punishes anyone with any amount of marijuana in their system and as such is unconstitutional, according to Fisher and Fisher Attorney Michael A. Ventrella of Stroudsburg. He has filed an appeal to the Pennsylvania Superior Court on this issue which has been joined by the Pennsylvania ACLU.
“The DUI law was written years ago, before there was legal marijuana in many states and before Pennsylvania provided for medical marijuana,” Ventrella explains. “The law says that if you have any amount of marijuana in your system while driving, you are automatically guilty of Driving Under the Influence even if the marijuana is no longer affecting you.”
The case on appeal concerns a driver who was pulled over for a taillight violation. The officer thought he smelled marijuana so requested the driver to give blood to prove he was not under the influence. No marijuana was found on the driver or in the car. The blood test came back with an inactive metabolite of marijuana in the driver’s system. He was charged and at his trial, the Commonwealth’s expert witness testified that an “inactive metabolite” meant that he had consumed the marijuana possibly days earlier and that the presence of the metabolite did not affect his driving in the slightest.
Under Pennsylvania DUI law, you can be charged with DUI if it is clear that your driving was impaired due to alcohol or drugs, but you can also be charged with DUI simply if there is the presence of marijuana in your system.
The court, bound by the law, found him not guilty of driving while impaired but guilty of DUI for having the marijuana in his system.
“This means that if you consume marijuana in a state where it is legal and then come to Pennsylvania, you can be prosecuted for DUI even if your driving was not impaired in the slightest,” Ventrella explained. “It also means that technically, anyone who has a medical marijuana card and uses their prescription legally can never drive in Pennsylvania.”
Ventrella pointed out in his brief to the Superior Court that the law punishes legal behavior and is therefore overbroad and unconstitutional. “The law needs to be rewritten to adjust to the changes that marijuana laws have had on society,” Ventrella says, “but the legislature of Pennsylvania has yet to do what other states have done to remedy the situation.”
The Pennsylvania ACLU joined in with the appeal and filed an amicus brief, emphasizing that the law does not define the word “metabolite” and is therefore vague and unconstitutional.
The Superior Court originally scheduled a hearing on the appeal for April but has cancelled it due to the corona virus shut-down. It is unclear whether it will be rescheduled or if the Court will simply make a decision based on the briefs.
UPDATE: The Superior Court denied the appeal by ignoring pretty much everything we had argued. The case is now before the Pennsylvania Supreme Court, which has not yet decided whether to accept it.
UPDATE 2 (JULY 2021): The Pennsylvania Supreme Court refused to take the case, and did not give a reason. So now my client has to go to jail even though he wasn’t driving impaired and the marijuana in his system was inactive.