For the Defense - Volume 3, Issue 1 - 2018 - 7

drug. Until our legislature sees the error of its
ways, and either reschedules THC as a Schedule II
drug, or rewords Section 3802(d)(1), we have to
aggressively litigate these cases. Here is a defense
that should prevail against Section 3802(d)(1)
charges.

The Overbreadth Defense
The issue of overbreadth of the DUID
statutes in relation to THC was dealt with in
Commonwealth v. Etchison.18 In that case, the
defendant argued that Section 3802(d)(1) of
the DUID law was unconstitutionally overbroad.
The Superior Court ruled that the statute was
not overbroad. Here is the key wording that the
Superior Court used in finding the statute was not
overbroad, and it is also the key wording to argue
that Section 3802(d)(1) is now unconstitutionally
overbroad in relation to defendants who are
certified medical marijuana patients under the
Medical Marijuana Law:
As our Supreme Court has explained, "[a]
statute is 'overbroad' if by its reach it
punishes constitutionally protected activity
as well as illegal activity." Commonwealth
v. Barud, 545 Pa. 297, 305, 681 A.2d 162,
165 (1996). If it does not reach both
categories of activity, 'then the overbreadth
challenge must fail.' Costa, 861 A.2d at
362. There is no constitutional right to the
use of marijuana prior to driving; indeed,
under Pennsylvania's Controlled Substance,
Drug, Device and Cosmetic Act, 35 P.S.
§ 780-101 et. seq., which has not been
deemed unconstitutional, an individual
is prohibited from any use of marijuana.
Thus, Appellant's challenge to 75 Pa.C.S.A.
§ 3802(d)(1) must fail.19
Now our General Assembly has created legal
uses for marijuana and THC. The Medical Marijuana
Law specifically sets forth the General Assembly's
policy on this matter.20 In part, the General
Assembly states that scientific evidence suggests
that medical marijuana is one potential therapy to
mitigate suffering in patients, a carefully regulated
program will enhance patient safety, and that the
legislation's goal is to provide access to medical

marijuana that balances the needs of patients and
promotes patient safety.
In Etchison, the Superior Court cited our
Supreme Court's decision in Commonwealth v.
Barud.21 I believe the Supreme Court's two-prong
analysis for determining whether a statute is
overbroad22 is met as applied to Medical Marijuana
Act patients. In fact, under the two-pronged test
set forth in Barud, I would argue that Section
3802(d)(1) charges in relation to THC are
unconstitutional to people who consume marijuana
illegally now. However, a defendant with THC
in their system should not be challenging the
constitutionality of this statute. It should be a
defendant who is a registered medical marijuana
user whose case should be the first challenge
Section 3802(d)(1) under the new law.
The Medical Marijuana Act is currently a blessing
and a curse. It is a blessing, in that it brings
Pennsylvania out of the dark ages in terms of
modern science's understanding of the medicinal
properties of marijuana. It will also allow our
sickest citizens to come out of the dark and obtain
their marijuana legally and avoid the dangers
of illegal marijuana purchased on the street. It
will also save our sickest citizens from marijuana
possession charges. However, it will make them
violators of our DUI laws which are worse and
have more collateral consequences than marijuana
possession charges. Until our DUID laws change,
either through aggressive defense of the citizen
accused or our legislature waking up and realizing
that the DUI laws need to be modified, medical
marijuana patients are in serious jeopardy of
criminal and collateral consequences under this
new law.
PANTONE

2955C

7406C

CMYK

90/78/39/30

9/22/91/0

RGB

22/58/92

234/194/56

HEXIDECIMAL

Vol. 3, Issue 1
#153A5B

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For The Defense

7



Table of Contents for the Digital Edition of For the Defense - Volume 3, Issue 1 - 2018

Contents
For the Defense - Volume 3, Issue 1 - 2018 - 1
For the Defense - Volume 3, Issue 1 - 2018 - 2
For the Defense - Volume 3, Issue 1 - 2018 - Contents
For the Defense - Volume 3, Issue 1 - 2018 - 4
For the Defense - Volume 3, Issue 1 - 2018 - 5
For the Defense - Volume 3, Issue 1 - 2018 - 6
For the Defense - Volume 3, Issue 1 - 2018 - 7
For the Defense - Volume 3, Issue 1 - 2018 - 8
For the Defense - Volume 3, Issue 1 - 2018 - 9
For the Defense - Volume 3, Issue 1 - 2018 - 10
For the Defense - Volume 3, Issue 1 - 2018 - 11
For the Defense - Volume 3, Issue 1 - 2018 - 12
For the Defense - Volume 3, Issue 1 - 2018 - 13
For the Defense - Volume 3, Issue 1 - 2018 - 14
For the Defense - Volume 3, Issue 1 - 2018 - 15
For the Defense - Volume 3, Issue 1 - 2018 - 16
For the Defense - Volume 3, Issue 1 - 2018 - 17
For the Defense - Volume 3, Issue 1 - 2018 - 18
For the Defense - Volume 3, Issue 1 - 2018 - 19
For the Defense - Volume 3, Issue 1 - 2018 - 20
For the Defense - Volume 3, Issue 1 - 2018 - 21
For the Defense - Volume 3, Issue 1 - 2018 - 22
For the Defense - Volume 3, Issue 1 - 2018 - 23
For the Defense - Volume 3, Issue 1 - 2018 - 24
For the Defense - Volume 3, Issue 1 - 2018 - 25
For the Defense - Volume 3, Issue 1 - 2018 - 26
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For the Defense - Volume 3, Issue 1 - 2018 - 28
For the Defense - Volume 3, Issue 1 - 2018 - 29
For the Defense - Volume 3, Issue 1 - 2018 - 30
For the Defense - Volume 3, Issue 1 - 2018 - 31
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For the Defense - Volume 3, Issue 1 - 2018 - 56
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