Beth Repp, a registered medical marijuana patient in Pennsylvania, crashed her car in Pittsburgh last September after suffering an epileptic seizure. Adding insult to injury, police arrested Repp and charged her with driving under the influence because "blood tests showed marijuana in her system." Now Repp is challenging Pennsylvania's unjust and unscientific definition of stoned driving, which effectively criminalizes driving by anyone who uses medical marijuana in compliance with state law.
Under Pennsylvania's DUI law, a defendant is automatically guilty of driving under the influence—a misdemeanor punishable by a 12-month license suspension, a maximum fine of $5,000, and up to six months in jail—if he operates a motor vehicle with "any amount" of a Schedule I substance or a "metabolite" of that substance in his blood. That definition is irrational on its face, since THC can be detected in blood long after its psychoactive effects have worn off and metabolites have no impact on driving ability. The eminent forensic pathologist Cyril Wecht, who has joined Repp's defense team, is expected to make those points when he testifies as an expert witness.
According to Repp's lawyer, Patrick Nightingale, she consumed marijuana "many hours" before her accident. Her THC blood concentration was 8.1 nanograms per milliliter, which is not unusual for a medical marijuana user and does not necessarily indicate impairment. THC blood levels are not a reliable indicator of impairment in general, and that is especially true when "any amount" of THC or even its inactive metabolites is sufficient for a DUI conviction. THC can be detected in the blood of daily cannabis consumers for up to a month after last use.
Under Pennsylvania's "zero tolerance" standard, any patient who regularly uses marijuana for symptom relief will always be breaking the law when he drives. "We have over 200,000 patients registered in Pennsylvania right now," Nightingale told WPXI, the NBC affiliate in Pittsburgh, "and every single one of us is DUI 24 hours a day, seven days a week, 365 days a year if we're using medical cannabis under Pennsylvania law."
By contrast, patients who use prescription opioids are allowed to drive in Pennsylvania unless they are "impaired." In a motion he filed last month, Nightingale argues that the DUI charge against Repp should be dismissed because the disparate treatment of marijuana and opioids violates her constitutional right to equal protection of the law. Pennsylvania's standard for marijuana DUIs, he says, "is not rationally related to a legitimate governmental interest as it criminalizes behavior that has nothing to do with impairment." Nightingale notes that "THC's non-psychoactive metabolite can be detected for days, weeks and in some cases months after cessation of cannabis use." He adds that appeals courts in Arizona and Michigan "have rejected THC metabolites as sufficient to sustain a DUI conviction for medical cannabis patients in those states."
Nightingale also argues that keeping marijuana in Schedule I of Pennsylvania's Controlled Substances Act (CSA), a category that is supposed to be reserved for dangerous drugs with a high abuse potential and "no currently accepted medical use," is irrational because "marijuana clearly has medical efficacy." Thirty-four states, including Pennsylvania, recognize marijuana as a medicine. "Pennsylvania patients and recreational consumers are denied equal protection of law," Nightingale writes, when "one statute claims no medical efficacy and another creates a medical cannabis production and distribution program estimated to benefit over 261,000 Pennsylvanians."
The Pennsylvania Superior Court, Nightingale notes in a supplementary motion he filed on March 3, last year held that "medical marijuana," as opposed to "marihuana" in general, is not a substance listed in Schedule I. The court noted that Pennsylvania's Medical Marijuana Act (MMA), which the legislature approved in 2016, "provides a very limited and controlled vehicle for the legal use of medical marijuana." It added that "outside the MMA, marijuana remains a prohibited Schedule I controlled substance for the general citizenry who are unqualified under the MMA."
The implication seems to be that the marijuana used by Repp was not "a prohibited Schedule I controlled substance" like the ones to which the DUI law refers. "If the court accepts that medical marijuana isn't Schedule I," Nightingale tells me, "then all Pennsylvania patients are potentially protected."
In the 2019 case, the Superior Court rejected an equal protection claim by a defendant (also represented by Nightingale) who was charged with possessing marijuana for sale. "We hold that the CSA and the MMA can be read in harmony and given full effect," the court said, since "the MMA was not intended to remove marijuana from the list of Schedule I substances under the CSA" but rather to "provide a controlled program for lawful access to medical marijuana under specific circumstances and criteria for special medical needs." A three-judge panel of the appeals court concluded that marijuana's Schedule I status "does not violate equal protection on the grounds that it treats similarly situated citizens disparately."
That case, unlike Repp's, did not involve a DUI charge or a patient authorized by the state to use marijuana as a medicine. The decision therefore did not address an equal protection claim based on the disparate treatment of marijuana and other legal medications under Pennsylvania's DUI law.
State Rep. Chris Rabb (D–Philadelphia), who is himself a registered medical marijuana user, has introduced a bill aimed at eliminating that disparity by creating a medical exception to the zero-tolerance rule. "Law enforcement can reasonably determine if someone is impaired through basic protocols," he told The Philadelphia Inquirer. "It doesn't matter what is impairing you. Sleeplessness can impair driving. Scores of pharmaceutical medicines can impair driving. I don't care what a person is doing or ingesting; it's the impairment that poses the danger. That's what needs to be addressed." If the aim is protecting the public from the danger posed by impaired drivers, of course, that approach makes sense for any psychoactive substance, regardless of its legal status or the motivation for using it.
Repp told WPXI that prosecutors urged her to take advantage of Pennsylvania's "accelerated rehabilitative disposition" program, which allows certain nonviolent offenders to avoid a criminal record by complying with court-ordered requirements such as counseling, community service, paying court costs, and monitored abstinence from drugs and alcohol. "They are looking at me like I'm a drug addict or an alcoholic," she said. "[They] keep saying to me, 'Well, that's not pleading guilty. It's not an admission of guilt.' Yes, it is an admission of guilt, when I have done nothing wrong."