States’ Legalization of Pot and How Pennsylvania’s refusal to Legalize Pot Effects You

Other states’ legalization of marijuana has had a huge impact on Pennsylvania residents. Pennsylvania has not taken any steps to legalize possession or personal use of marijuana.  Neighboring state’s legalization and lax federal enforcement has resulted in Pennsylvania authorities engaging in a heightened enforcement atmosphere, not relaxed one.

For example, recently a suburban Philadelphia doctor and his daughter were charged possession with intent to deliver marijuana (“PWID”) after discovering that they were growing marijuana in their house.  They were caught after the doctor began selling his home-grown marijuana to his patients. While marijuana may serve some medicinal purposes, easing or slowing the progression of glaucoma, Pennsylvania has yet to allow medical marijuana. As such, a Pennsylvania doctor’s possession, selling and illegal prescribing pot to his patients for a suggested medical purpose is illegal.

The number of plants possessed in the house is also a big issue. Twenty eight marijuana plants were seized from the doctor’s home along with cash and contraband.  These illegal plants in a personal residence being used for criminal purposes subjects the doctor’s Haverford Township home subject to forfeiture.  The house was being utilized to engage in a criminal enterprise.

Whether you agree or disagree with the slow legalization of pot in Pennsylvania, it currently is, and always will be, a crime to sell pot if you are not a properly licensed entity.  Eventually, there will be a significant regulatory scheme in place to in Pennsylvania to buy and possess personal use cannabis.  Look to California, Arizona,and Colorado for examples.  As such, a doctor will never be allowed to grow his own pot and sell it to his patients for his prescribed medical treatment.

On the DUI front, the Arizona Supreme Court recently rejected a marijuana DUI prosecution.   In that matter, an individual was charged with driving under the influence of marijuana because traces of THC remained in his bloodstream several days after he legally smoked marijuana. A blood test revealed the presence in his blood the cannabis metabolite carboxy – THC.   However, this chemical does not cause an impairment.  As such, absent an impairment, the Arizona State Supreme Court ruled the individual was not “incapable of safe driving”.  This is called the “impairment” rule — a person must be actually impaired to be guilty of the DUI offense.  The charges were dismissed.

Pennsylvania does not follow this rule.  Pennsylvania is a “per se” violation state.   Pennsylvania law only requires the mere presence of the cannabis metabolite in a Pennsylvania automobile operator’s blood during motor vehicle operation for a violation of 75 Pa C.S.A. §3802(d) to be found.  This rule does not matter if the operator of the car is a resident of another state.  If you drive on Pennsylvania’s roads, you are subject to Pennsylvania law.  Obviously, the car must be legally stopped or investigated for another motor vehicle violation, and the THC is discovered, before a guilty verdict may be found.   The same mere presence law applies to all Pennsylvania professional license cases and health care work place rule violation cases.

New Jersey and Arizona follow an impairment statute which requires an expert to testify that any illegal substances in the blood rendered the person “impaired” and not able to operate a motor vehicle safely.  Pennsylvania requires the government to only present a drug report showing the presence of the drug.  As such, in Pennsylvania a person could be found guilty of DUI if they legally use medicinal or recreational marijuana outside of Pennsylvania but is stopped in Pennsylvania for some motor vehicle violation and the stop results in a blood draw due to suspicion of DAI or DUI.
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The Pennsylvania licensing boards will follow Pennsylvania criminal statutes regarding possession and use of marijuana laws in Pennsylvania, not other jurisdictions. The lack of impairment will be irrelevant for any Pennsylvania licensing board investigation of illegal drug use or possession.  Please call to discuss your case.
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