Your Medical Marijuana Card is NOT a Defense to Driving Under the Influence (DUI) in Pennsylvania or Driving While Intoxicated (DWI) in New Jersey
Your Medical Marijuana Card is NOT a Defense to Driving Under the Influence (DUI) in Pennsylvania or Driving While Intoxicated (DWI) in New Jersey
Recently, a client was surprised to learn that his medical marijuana card didn’t serve as a legal defense to his DUI charge in Pennsylvania. He, like a lot of my clients, believed that driving while impaired, under the influence, or while intoxicated only applied illegal drugs such as crack cocaine, PCP, heroine or some other non proscribed narcotic drug. In reality, however, that this is simply not the case.
Despite a common myth, DUI/DWI is a question of impairment and the ability to safely operate a motor vehicle in Pennsylvania and New Jersey. The form of drug (prescription or non prescription) is not an element of this crime or offense in either Pennsylvania and New Jersey. If a drug impairs your ability to operate a motor vehicle safely and the prosecution can prove it beyond a reasonable doubt, you will be convicted!
This is the reason why I advise my clients in Pennsylvania and New Jersey to never volunteer information to the police officer following a traffic stop. You should be polite and respectful to the officer. You should not, however, give consent to search your car or show the officer your medical marijuana card if he or she indicates that they detect the odor of the drug. If you admit to consumption or ingestion, you are simply providing the prosecution with more evidence that will likely lead to your conviction, a possible jail sentence and a driver’s license suspension.
When could a prescription drug reaction be a defense to impairment in Pennsylvania or New Jersey?
The fact that a person was on a prescription or non-prescription drug will only help the defense if it can establish that the person reasonably believes that the drug would not cause impairment. A mistake defense for prescription and non-prescription drugs therefore must assert that the individual had an actual and reasonable belief that the drug would not cause impairment. This defense focuses on the Mens Rea element of a criminal offense. The prosecution is always required to establish an Actus Reus and a Mens Rea. Actus Reus is the physical act while Mens Rea is the mental intent to commit a crime.
In Pennsylvania, like New Jersey, voluntary intoxication isn’t a defense to any criminal charge with the exception of murder where the defense seeks to mitigate the degree of the crime from first to second degree murder (to avoid a death sentence or life without the possibility of parole.) Criminal defense attorneys have tried this defense in sexual assault and rape cases without success.
In the case of DUI, the prosecution must establish that the accused individual was under the influence of drugs or alcohol which made her unable to operate a vehicle safely on the road. The severity of the charge is based on the degree of intoxication or other substances within the person’s system at the time of the arrest. Unlike, alcohol, which requires a specific Blood Alcohol Concentration (BAC). Drug are a strict liability standard so any amount will lead to a criminal conviction ; the prosecution can establish impairment through chemical evidence but it can also meet the burden through the arresting officer’s testimony
The Mistake Defense & Drug Reactions
The prosecution will attempt to negate a mistake defense by focusing the judge on jury on the unreasonableness of the defense. The prosecution will typically make its argument based on the following:
- The length and depth of a defendant’s experience with the drug found in his system at the time of the arrest;
- Whether the Defendant followed the directives of his doctor in taking the medication (dosage, timing, other drugs);
- The warning labels on the medication;
- And warnings from the doctor or the pharmacist;
- Whether the defendant made his doctor aware of other medications at the time of the prescription.
The mistake defense will only be successful if your attorney can convince a judge or a jury that it was reasonable. It is therefore important that your attorney have answers to address the prosecution’s arguments regarding the medication, its warnings, and your understanding of its warnings based on meetings with your doctor and the label information. Simply stating that “I thought I was ok to drive” is not enough for this defense. Your attorney needs strong evidence to make a proper mistake argument.
Who qualifies for a Medical Marijuana Card?
To qualify for medical marijuana, a patient must have defined condition which would include the following:
- Amyotrophic lateral sclerosis,
- Parkinson’s disease,
- Multiple sclerosis (MS),
- Epilepsy,
- Inflammatory bowel disease,
- Neuropathies,
- Huntington’s disease,
- Crohn’s disease,
- Post-traumatic stress disorder,
- Intractable seizures,
- Glaucoma,
- Autism,
- Sickle cell anemia,
- damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity,
- severe chronic or intractable pain of neuropathic origin,
- or if conventional therapeutic intervention and opiate therapy is contraindicated or ineffective.
The following are acceptable forms of medical marijuana:
- Pill
- Oil
- Topical forms – gels, creams or ointments,
- Vaporization or nebulization,
- Tincture
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