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.
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