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Proposed bill would eliminate DUI penalties for medical marijuana user

Under current state laws, there are more than 100,000 medical marijuana users who are breaking the law every time they get behind the wheel.

There is a proposed bill in the Pennsylvania Senate that would eliminate the zero-tolerance DUI penalties for those legally using medical marijuana.

Sen. Camera Bartolotta (R-46) introduced the bill in June.

“We need to ensure that the legal use of this medicine does not give rise to a criminal conviction,” Bartolotta said. “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.”

The existing law does not provide that “peace of mind.”

There are no protections for people who legally use medical marijuana and do not use marijuana recreationally, Warren County District Attorney Rob Greene said.

“An individual that has a medical marijuana card and legally (in Pennsylvania) uses marijuana would be technically guilty of DUI if they drive and have used marijuana anytime in the past month,” Greene said.

“This is because THC can stay in your system for about a month.”

“Marijuana is a Schedule 1 Controlled Substance,” Greene said. “Any amount of a Schedule 1 Controlled Substance in an individual’s blood while driving in PA is guilty of DUI.”

There is no requirement that a driver be determined to be impaired to convict that driver.

“The Commonwealth does not have to prove, under this particular charge, that the defendant was incapable of safe driving,” he said. “The Commonwealth only has to prove that the defendant’s blood contained a controlled substance at the time he or she was in control of the vehicle.”

“A person can be convicted solely based off of a test result of their blood,” Greene said. “In fact, it could be successfully argued that ‘probable cause’ exists to stop a motorist, take them to a hospital and test their blood based merely on the fact that an officer knows the person has a medical marijuana card and the person is driving.”

Bartolotta’s bill would prevent that, but it is not intended to change the consequences of recreational marijuana use.

“The proposed legislation is addressing a problem that definitely exists and has been discussed often among prosecutors and defense counsel,” Greene said.

“Just to clarify, there is a difference between medical marijuana and recreational marijuana,” City of Warren Police Chief Brandon Deppen said. “Medical marijuana is something that is referred by a doctor to someone as a result of a medical condition. The patient must have a physician certify that they suffer from one of the medical conditions to qualify. Recreational marijuana is just that, for recreation. It is not for the ‘treatment’ of a medical condition.”

“It is illegal to drive under the influence of alcohol or drugs, but those who’ve been medically approved for marijuana may think this doesn’t apply to them,” Deppen said. “It’s important to understand that it very much does just as it would if someone is using a prescribed medication that affects their ability to drive.”

Whether medical or recreational, marijuana use can impair a person’s ability to drive, Deppen said.

“Studies have found a direct relationship between the concentration level of THC (the chemical responsible for most of marijuana’s psychological effects) in a person’s blood and impaired driving ability, including slowed reaction times,” he said. “For this reason, Pennsylvania – and all other states where medical marijuana is legal – does not allow individuals to drive when using the drug. Just like any other driver using alcohol or marijuana while driving, those approved for medical marijuana can receive a DUI, with penalties ranging from fines to jail time.”

Medical marijuana users do not have a ‘prescription’ for the drug.

“It is illegal for physicians to prescribe the drug because it is Schedule 1, and prescribing it would constitute aiding and abetting the acquisition of marijuana, which could result in revocation of DEA licensure and even prison time,” Deppen said. “However doctors can write a recommendation, after determining and certifying that the patient suffers from one of the conditions that the state law deems to warrant medicinal marijuana.”

Those patients can’t just take the recommendation and go out and smoke some marijuana.

“The only types of medical cannabis allowed initially are pills, oils, gels, creams, ointments, tinctures, liquid, and non-whole plant forms for administration through vaporization,” Deppen said. “Dispensaries cannot sell edibles, but medical cannabis products could be mixed into food or drinks to facilitate ingestion by a patient in a facility or residence. Vaporization is allowed, and smoking is prohibited.”

While a blood test is legally sufficient, it is not how an arrest typically happens. The officer who pulls a driver over doesn’t have the results of a blood test in advance.

Impairment is the first clue, and the key to most convictions.

The ability to prove impairment “is what our DA’S office expects from the police,” Youngsville Borough Police Chief Todd Mineweaser said.“They have the final decision to dismiss cases if they don’t think it’s prosecutable.”

“We only take the drivers for breath or blood test when we suspect a person is impaired which may include: poor driving performance, showing clues of impairment – speech, eyes, demeanor – while talking with them, observing them and then doing our Standardized Field Sobriety Testing,” Mineweaser said. “Officers take the totality of the circumstances and make those decisions.”

“To say the person is arrested solely based off of the test results of blood is not accurate,” Deppen said. “There are many factors to be determined even before the person would be taken for a blood test. There would be other factors like the reason for the original traffic stop – the violation observed – or crash they may have been involved in, the observed actions of the driver and how they respond to questions and testing.”

Blood tests and an officer’s judgment of impairment don’t always line up.

“I have seen people impaired to the point they should not be driving and struggle walking but have come under the legal limits of alcohol – .08% – and have not been prosecuted,” Mineweaser said.

There is no breath test for marijuana.

“Unlike alcohol, police can’t simply give an individual a breath test to determine (other drug) intoxication levels yet,” Deppen said. “Traditional field sobriety tests are used to determine if a person is unable to safely operate a motor vehicle.”

There are officers in the county who are specially trained to recognize the signs of intoxication that accompany drug use.

“If an officer needs further assistance on a DUID stop they call out the DRE – Drug Recognition Expert – to assist,” Mineweaser said. “The DRE will conduct another series of tests and break it down to the type of drug the driver is on.”

“The DRE will look for physical signs that point to marijuana usage, including glassy or bloodshot eyes, dilated pupils, swaying, and slurred speech,” Deppen said.

The bill is not without opposition.

Mineweaser is a vocal opponent of relaxing marijuana laws.

“Other states have already changed this legislation,” Mineweaser said. “What happens is: when you have more people using an intoxicant like marijuana, whether it’s for medical or recreational use, more people will be on our roadways driving which means more arrest will be made.”

“It’s already happening and that means too many arrest are being made, court log is backed up, probation departments get overloaded as do jails,” he said. “So we water down these laws or penalties, so people can still go out and get high, have some fun and not worry about being arrested or running into innocent human beings and hurting or killing them.”

“I wish people completely understood the long term effects on the brain from using marijuana daily,” Mineweaser said. “I wish people would surrender their driver’s license when they receive a Medical Marijuana Card. More people use this drug to get high than for any medical condition. That is a fact.”

“It’s another abused drug people feel entitled to use freely for whatever reason they feel fits them,” he said.

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