The Cannavist USA Issue 1 | Page 75

at heights, or with certain types of chemicals – but nothing for driving, something millions of people do on a daily basis. “Law makers are aware that it would be appropriate to place some regulations, but it has never been tackled.” Patrick explains that the zero-tolerance approach is due to cannabis being a Schedule I controlled substance. However, if a driver was taking a different form of medication, such as Xanax, OxyContin or Percocet, then impairment would need to be proven to enforce in a DUI conviction. The reason? These medications are Schedule II controlled substances. It gets more complicated. To be arrested for a cannabis-related DUI offence, law enforcement must have a ‘suspicion’ that cannabis has been consumed. Patrick explains the suspicions he hears of most frequently have nothing to do with an individual’s driving ability. Unlike suspected drunk drivers who may weave in and out of lanes, or disobey the speed limit, cannabis-related DUI suspects are often pulled over for an entirely different reason. A broken taillight, random spot checks or low tire treads can lead to police attention. Once the driver has been stopped for an unrelated incident, offi cers may suspect cannabis consumption and therefore driving under the infl uence of drugs. “I am very concerned about this pseudo-science and drug recognition technique that offi cers use to determine cannabis consumption. “Seeing a green or chalky tongue, or allegedly seeing eyelid tremors or spasticity are not scientif ic reasonings. They do not prove impairment.” But they are enough to request a blood test. A blood test that cannot be refused, unless the driver wants to lose their license for one year. If THC metabolites are discovered in the blood test, regardless of their quantity, a DUI conviction can be processed. And when the case gets to court, it becomes even more complicated. “There is a Pennsylvania case law that says a trooper is not qualifi ed to testify that the presence of a chalky tongue is a signal of recent marijuana use, even though they can use it as probable cause to request a blood draw.” “When he was stopped for a driving offence and the offi cer wrote him a ticket, he asked if there was anything in the vehicle he should be made aware of, as is standard procedure. “My nice, yet naive, client – trusting the police offi cer – replied ‘yes Sir, I just want to let you know that I am a medical cannabis patient’. That one sentence scaled it up to a full-on DUI investigation. “The trooper then testif ied under oath that my client admitted to smoking marijuana just prior to getting in his car and driving himself home f rom work. The delta 9 [THC] level was 0.65, meaning that he could not have consumed cannabis any sooner than four to six hours prior to driving. “Their own lab results proved that he could not have smoked marijuana just before getting in the car, but ultimately we are a zero-tolerance state. “We are now planning to go through the accelerated rehabilitative disposition (ARD) program.” The ARD program can be made available to non- violent f irst-time offenders, it does not class as a police conviction and there are no jail sentences attached. “But, thank God he has this diversionary disposition available to him. “Ultimately for every single Pennsylvania patient that uses medical cannabis, we are a DUI 24/7, 365 state. And that is untenable.” Because impairment is irrelevant. As long as THC traces are found in the driver’s blood, a DUI conviction stands strong, and that is where defense attorneys like Patrick come in. “A case that I am dealing with right now where my client who is a very law and order type person, he was raised to trust the police and in the trooper’s dash cam you can even see he is wearing a nice, shiny new Trump hat. 75