This information has been provided by the National Organization for the Reform of Marijuana Laws, and is believed accurate as of September 1, 2013.

In Pennsylvania, a person is guilty of DUI if he or she drives (1) with any amount of a Schedule I controlled substance under the Controlled Substance Act in his or her blood,* (2) with a metabolite of a schedule I substance in his or her blood,* (3) under the influence of a drug or combination of drugs to a degree which impairs his or her ability to safely drive, OR (4) under the combined influence of alcohol and a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive. 75 Pa. C.S.A. §§ 3802(d)(1)-(3) (West 2010).

NOTE: The Pennsylvania legislature has criminalized driving while a cannabis metabolite (which can linger in a person’s system for weeks after ingestion) is present in an operator’s system – even absent impairment. There is, however, a certain threshold for concentration of illicit metabolites that must be met before the results of a chemical test indicating cannabis metabolites can be introduced as evidence.

The Pennsylvania Bulletin, vol. 34, issue 7 initially specified the threshold level for THC or its metabolites at 5 nanograms per milliliter. However, this minimum threshold was amended to 1ng/ml in 2011, as noted in the April 30, 2011 edition of the Pennsylvania Bulletin. Any amount of cannabis metabolites at or above this level can be introduced as evidence of a per se violation of the statute proscribing operation with Schedule I metabolites, and can be introduced in a proceeding for prosecution for driving while impaired by drugs. However, the mere presence of metabolites are not enough to convict for offenses requiring impairment. In such a proceeding the state must show actual impairment.

Affirmative defense

The fact that a person charged with violating this chapter is or has been legally entitled to use alcohol or controlled substances is not a defense to a charge of violating this chapter.Id. § 3810.

Implied Consent

• Any person who drives in Pennsylvania shall be deemed to have given consent to chemical tests of breath, blood or urine for the purpose of the presence of a controlled substance. Id. § 1547(a).
• If any person placed under arrest is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person from 6-18 months. Id. § 1547(b)(1).
• In any summary proceeding or criminal proceeding in which the defendant is charged with a violation arising out of the same action, the fact that the defendant refused to submit to chemical testing may be introduced in evidence along with other testimony concerning the circumstances of the refusal. No presumptions shall arise from this evidence but it may be considered along with other factors concerning the charge. Id. § 1547(e).
• The person tested shall be permitted to have a physician of his own choosing administer an additional breath, blood or urine chemical test and the results of the test shall also be admissible in evidence. The chemical testing given at the direction of the police officer shall not be delayed by a person’s attempt to obtain an additional test. Id. § 1547(h).
• Officer’s refusal to allow accused to consult with attorney before deciding whether or not to submit to chemical test was not unconstitutional or otherwise improper. The right to speak with an attorney before deciding whether to submit to chemical tests is not a guaranteed constitutional right.Herbert v. Com.,460 A.2d 920(1983).

Penalties

• First offense misdemeanor – imprisonment of for a minimum of 72 consecutive hours, maximum imprisonment of 6 months; fine of not less than $1000, not more than $5000; offender required attend alcohol highway safety school; license suspension of at least 18 months; offender may be required to complete 150 hours of community service; offender may be required to attend a victim impact panel. Id. 3803(a)(1); Id. § 3804(c)(1)(i); Id. §§ 3804(c)(1)(ii)-(iii); Id. §§ 3804(e)-(f).
• Second offense misdemeanor – imprisonment for a minimum of 90 days, maximum imprisonment of 6 months; fine of not less than $1,500; offender required to attend alcohol highway safety school; license suspension of at least 18 months; offender may be required to complete 150 hours of community service; offender may be required to attend a victim impact panel. Id. §§ 3803(a)(1); Id. §§ 3804(c)(2)(i)-(iii); Id. § 3803(a)(1); Id. §§ 3804(e)-(f).
• Third and subsequent offense 2nd degree misdemeanor – minimum imprisonment for 1 year; fine of not less than $2,500; license suspension of at least 18 months; offender may be required to complete 150 hours of community service; offender may be required to attend a victim impact panel. Id. § 3803(a)(2); Id. §§ 3804(c)(3)(i)-(ii); Id. §§ 3804(e)-(f).

Sobriety Checkpoints

Pennsylvania allows law enforcement to conduct sobriety checkpoints under the state and federal Constitution.

• Law enforcement should provide sufficient warning of sobriety roadblocks through newspaper publication and signs, but need not provide an opportunity to avoid the checkpoint. Commonwealth v. Pacek, 691 A.2d 466 (1997).
• Sobriety checkpoint locations must be in an area with a high number of DUI related accidents and arrests. Commonwealth v. Blee, 695 A.2d 802 (1997).
• Performing a legal U-turn before a checkpoint is not justification to stop a motorist. Commonwealth v. Scavello, 703 A.2d 36 (1997).

Case Law

Com. v. Etchison, 916 A.2d 1169 (2007), affirmed 943 A.2d 262 – There is no equal protection violation in disallowing persons to operate with Schedule I drug or metabolite present in system; conviction does not rest on whether driver is impaired, but instead statute prohibits operation of a motor vehicle by any driver with Schedule I substances present. Pennsylvania court found all drivers are treated the same under statute.

Evidence failed to establish that defendant was under influence of drug or combination of drugs to degree which impaired his ability to safely operate his vehicle; expert witness testified under cross-examination that presence of metabolites was not indication of present impairment but only that substance was ingested sometime previously. Defendant was, however, convicted for operating with illicit metabolites in blood.

Com. v. Bishop, 126 A.2d 533, (1956) — Statute making it unlawful for any person to operate a motor vehicle while under influence of intoxicating liquor, or any narcotic drug or habit producing drug, defines only one offense, namely, operating a motor vehicle while under an unnatural influence. 75 P.S. § 231(f). Where defendant was prosecuted for operation of motor vehicle while under influence of intoxicating liquor and he was acquitted, he could not thereafter be tried for operation of motor vehicle while under influence of narcotic drug based upon the same incident. 75 P.S. § 624(8).

Commonwealth v. Woodruff, 668 A.2d 1158, 1161 (1995) — An intoxicated individual may use a vehicle as shelter as long as they do not drive or operate it, and are not in actual physical control of the vehicle. “A combination of the following factors is required in determining whether a person had ‘actual physical control’ of an automobile: the motor running, the location of the vehicle, and additional evidence showing that the defendant had driven the vehicle.”