For the Defense - Vol. 5, Issue 1 - 19

laws, and this runs counter to the requirement
that a Schedule I substance must have no valid
medical usage.
Meanwhile, a Schedule II controlled substance
has a high potential for abuse and dependence.
This type of substance has accepted medical uses
with a potential for severe addiction. A Schedule
III controlled substance has lower potential for
abuse, accepted medical uses and a mild to
moderate possibility of addiction.
Considering these definitions, a rescheduling of
marijuana may be in order, if it has a valid medical
use. It should be noted, however, that similar
arguments challenging the constitutionality of
marijuana's Schedule I classification have failed
in at least two cases in which the Superior Court
declined to grant relief after hearing arguments
that marijuana has valid medical uses and should
be subject to reclassification.4
Why would a rescheduling be of potential
assistance? Because, under Section 3802(d)(1)(ii),
a person who is prescribed a Schedule II or a
Schedule III controlled substance is not prohibited
from operating a vehicle as long as they are not
impaired.5 That section prohibits the operation
of a vehicle while a person is under the influence
of a drug or combination of drugs to a degree
that impairs the individual's ability to safely drive,
regardless if the substance is prescribed or not.
This still leaves open the debate as to whether
medical marijuana is something that is prescribed
or something that is just permitted to be used. A
rescheduling might not solve the issue alone.
So, where does this leave a medical marijuana
recipient who operates a motor vehicle in
Pennsylvania and why do we need a change in
legislation going forward to address this? If a card
holder smokes legally obtained marijuana on a
Saturday night, are they still subject to prosecution
the following Wednesday morning if a metabolite
is found in their system? Under the current law,
the answer is yes - regardless of impairment. It
is widely recognized that marijuana metabolites
remain in a person's system for various periods
of time post-consumption. This is a conflict in
Pennsylvania law that needs to be remedied. What
are the options?
To help answer this question, it is useful to
review how other states across the country

address the issue. Nationwide, there are three
distinct approaches taken. First, in approximately
thirty-two states, an individual cannot be
prosecuted for driving under the influence of a
controlled substance unless the government can
prove actual impairment - regardless of the levels
found in the driver's system. Second, Pennsylvania
and thirteen other states are labeled "zero
tolerance" states, those that prohibit operation
with any amount of a controlled substance
in the person's system. A small amount of
these states create an exception for medical
marijuana permittees. Finally, five states -- Ohio,
Washington, Colorado, Montana and Nevada
-- have established per se levels of THC. Similar
to a .08 BAC, if a person has an amount of THC
in their system equal to or above the established
threshold, they are subject to prosecution for
driving under the influence of a controlled
substance. These thresholds range from 2 ng/
mL to 5 ng/mL of Delta 9 THC. It should be
noted that Colorado allows this level to create a
permissible inference of impairment, still leaving
the ultimate question of impairment up to the
judge or jury.
With these options in mind, what is the best
course of action for Pennsylvania going forward?
The status quo of zero tolerance should be
eliminated as the existing law unfairly penalizes
non-impaired drivers for their past use of a legally
obtained substance. But what do we replace
the existing law with? For example, should we
adopt a per se level of active metabolite, like the
five states mentioned above? That answer is an
absolute "no." A per se level does not establish
impairment as a variety of factors can impact
whether a person is impaired, including, but not
limited to, a person's weight, frequency of use,
and metabolism.
In fact, in July 2017, the National Highway
Traffic Safety Administration (NHTSA) reported to
Congress on the issue of marijuana and impaired
driving.6 This report called into question the use
of per se limits, which were not evidence based.
Relying on various studies, the NHTSA report
suggested that establishing a certain level was
problematic as a poor correlation between THC
concentrations and sobriety test performance
was found. Further, of potential assistance to
the prosecution, the NHTSA report opined that
the adoption of a per se level "would appear
to result in the exclusion of a large number of
Vol. 5, Issue 1 l For The Defense

19



For the Defense - Vol. 5, Issue 1

Table of Contents for the Digital Edition of For the Defense - Vol. 5, Issue 1

Contents
For the Defense - Vol. 5, Issue 1 - 1
For the Defense - Vol. 5, Issue 1 - 2
For the Defense - Vol. 5, Issue 1 - Contents
For the Defense - Vol. 5, Issue 1 - 4
For the Defense - Vol. 5, Issue 1 - 5
For the Defense - Vol. 5, Issue 1 - 6
For the Defense - Vol. 5, Issue 1 - 7
For the Defense - Vol. 5, Issue 1 - 8
For the Defense - Vol. 5, Issue 1 - 9
For the Defense - Vol. 5, Issue 1 - 10
For the Defense - Vol. 5, Issue 1 - 11
For the Defense - Vol. 5, Issue 1 - 12
For the Defense - Vol. 5, Issue 1 - 13
For the Defense - Vol. 5, Issue 1 - 14
For the Defense - Vol. 5, Issue 1 - 15
For the Defense - Vol. 5, Issue 1 - 16
For the Defense - Vol. 5, Issue 1 - 17
For the Defense - Vol. 5, Issue 1 - 18
For the Defense - Vol. 5, Issue 1 - 19
For the Defense - Vol. 5, Issue 1 - 20
For the Defense - Vol. 5, Issue 1 - 21
For the Defense - Vol. 5, Issue 1 - 22
For the Defense - Vol. 5, Issue 1 - 23
For the Defense - Vol. 5, Issue 1 - 24
For the Defense - Vol. 5, Issue 1 - 25
For the Defense - Vol. 5, Issue 1 - 26
For the Defense - Vol. 5, Issue 1 - 27
For the Defense - Vol. 5, Issue 1 - 28
For the Defense - Vol. 5, Issue 1 - 29
For the Defense - Vol. 5, Issue 1 - 30
For the Defense - Vol. 5, Issue 1 - 31
For the Defense - Vol. 5, Issue 1 - 32
For the Defense - Vol. 5, Issue 1 - 33
For the Defense - Vol. 5, Issue 1 - 34
For the Defense - Vol. 5, Issue 1 - 35
For the Defense - Vol. 5, Issue 1 - 36
For the Defense - Vol. 5, Issue 1 - 37
For the Defense - Vol. 5, Issue 1 - 38
For the Defense - Vol. 5, Issue 1 - 39
For the Defense - Vol. 5, Issue 1 - 40
For the Defense - Vol. 5, Issue 1 - 41
For the Defense - Vol. 5, Issue 1 - 42
For the Defense - Vol. 5, Issue 1 - 43
For the Defense - Vol. 5, Issue 1 - 44
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue2_2020
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue1_2019
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue3_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue2_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue1_2018
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https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue3_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue2_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue1_2017
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue4_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue3_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue2_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue1_2016
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