Marijuana

After a State-Authorized Medical Marijuana Patient Had an Epileptic Seizure and Crashed Her Car, Police Arrested Her for Driving With 'Marjuana in Her System'

The case illustrates the injustice and irrationality of Pennsylvania's "zero tolerance" approach to stoned driving.

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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."

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  1. If you’re still having seizures, you aren’t allowed to legally drive.

    1. Was wondering that myself, although as I recall your license is suspended for some period of time (I think six months in Texas?) after a self-reported or physician reported seizure.

      It’s possible that this person hasn’t had a reported seizure for long enough to have their license reinstated but it’s hard to say from the article.

    2. Based on the article above, the seizure that caused the crash could have been her first seizure. Is there another source that indicates that it wasn’t her first? I assumed (perhaps incorrectly) that her medical marijuana use was for some other condition entirely.

      And whether it was her first or not, there’s still no good justification for piling on the drug charge.

      1. If it was her first seizure, it wouldn’t be called an epileptic seizure. Unless the use of the term is an example of a layman journalist using technical terms loosely and inappropriately, which is entirely possible.

        1. layman lazy journalist using technical terms loosely and inappropriately,
          FTFY
          Thirty seconds of giving a fuck should’ve made it immediately apparent even to laymen.

    3. The law in most states is that you have to be seizure free for a year or 6 months. I thankfully haven’t had a tonic clonic seizure in a few years, but used to get them about once a year on average, so I’ve been legally able to get a license at several times and could have potentially been in her situation. However, the last time I had a tonic clonic seizure was biking to work. Not eager to find out what would’ve happened if I’d been behind the wheel doing highway speeds at the time.

    4. And you know that how? Yep, you made it up. Re: the cops, they pull people over for driving in the center lane, which isn’t illegal but what are you doing to do when you see the red lights.The plain fact of the matter is, cops break the law all the time, most often when THEY are breaking the law. Since cops nation wide do little to prevent or stop crime, why not pull ALL cops to work a beat where crimes ARE hight, and then we will all see how “tough: they are (aren’t). Athadumb needs to look things up before he excretes his/her idiocies. The real info: In most states, you must be seizure-free for anywhere from 6 months to a year before you’ll be allowed to drive.

  2. 20 feels like 80. Since you think you are speeding, it’s a crime. A thought crime.

  3. Take your medicine and avoid the rap. Also don’t drive anymore because you’re epileptic.

    1. If she had a seizure while taking medicinal marijuana, the question I have is, does medicinal marijuana actually help the seizures?

      1. I’d wager that most people that swap their epilepsy meds to pot do so because of cost. Some studies say that it helps with certain types of epilepsy, and some say it doesn’t. So, basically, who knows?

        Part of it is probably because even on medications, people can still have seizures but fewer of them. I’m no expert, but that’s what I’ve gathered from the epileptics I’ve known in the past. Of course, their rampant alcoholism probably didn’t do them any favors with recurring seizures. There’s only so much meds can do to combat lifestyle.

      2. Maybe she needs to take more

      3. Maybe not in her case, but it’s hard to tell in general from one case.

      4. Like any drug use it’s different for each person.

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  4. If you are stoned, you’re stoned, regardless if it’s the solution to a medical problem or not. And if you have seizures, you shouldn’t be driving.

    I had a co-worker that got them. He had to ride a bike to work because he couldn’t drive.

    1. Can you please cite the scientific research which has categorically proven driving stoned is especially hazardous?

      1. I don’t need scientific research cause I’ve got rock-solid anecdotal evidence sitting in a field and in a wreckers lot, that demonstrates I shouldn’t drive baked.

    2. I have to disagree because “Stoned” means you are impaired.

      On the other hand, Colorado has a legal limit
      of 5 ng/ml

      So, she was nearly twice the legal limit that a sister state has established

  5. Did Jacob believe this coerced legalization (as opposed to repeal of prohibition laws or decriminalization) was voted by looter machine politicians because they wanted freedom or justice?

  6. All drugs laws are unconstitutional.

    No Democrat wants to completely repeal the Controlled Substances Act and make drugs like any other product which is lightly regulated.

    Never be fooled. Never vote for a Democrat.

    1. So regulations aren’t unconstitutional?

      1. Regulation does not mean banning a product or service.

        If drugs were regulated like other products and services, then you could have a constitutional power like interstate commerce.

        Nearly all drug laws involve banning them or controlling who, when, and where an adult ingests a substance.

  7. It seems that Jacob Sillum the journalist who wrote this article lacks common sense. Anyone with half a brain should realize that if you have used drugs and you get behind the wheel of a automobile you are putting not just yourself but others at risk no matter what the level that is detectable. If you kill someone while you have drugs in your system no matter what the level is you deserve either life in prison or the death penalty. Guilty, case closed.

    1. I don’t think you seem to understand how the testing for marijuana metabolites works and how the chemicals in marijuana can impair someone. I can only hope she has people smarter than you on her jury.

      1. I don’t think you seem to understand how marijuana works if you think you can smoke a jay and automagically be fine to drive in the morning.

    2. How is that different than killing someone while sober? The person is still dead right?

    3. Drug Warriors are the ones lacking common sense.

    4. What a spectacularly stupid thing to say. By your “logic” if you’ve drunk a beer and drive the next day and have a fatal accident you deserve the death penalty because alcohol is detectable in your bloodstream. It isn’t Sullum who lacks sense, common or otherwise.

    5. People like you are so fucking dumb you shouldn’t even vote.

    6. The author made it sound like 8 ng/ml is a tiny residual amount.
      However, Colorado has set a legal driving limit. 5 ng/ml. She was driving at nearly twice the only legal limit that has been established.

      So, I have to question Mr. Sullum’s impartiality and research, as this was HEAVILY relevant and I found it with mere seconds of research.

      EDITOR: I request that you put this fact as an addendum. Without a comparable legal standard, this article is fundamentally dishonest.

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  9. It’s easy to tell a stoned driver, they’re going 20 under the limit. So if they divert her they want to take away her medicine which they set up this whole byzantine system to get her? Government logic.

  10. This will happen across the river in the People’s Republic of NJ as well. I guarantee it. We have a medical marijuana program as well. The laws surrounding MMP (medical marijuana program) are spotty. For example, if you participate in MMP, can your employment be terminated if you fully comply with the law? What about drug testing during application for employment. A lot of issues.

    If a state chooses to enact a MMP, then the law must be a protection to the patient. The law must protect them, not punish them for fully complying with a state sponsored program.

  11. Under Pennsylvania’s “zero tolerance” standard, any patient who regularly uses marijuana for symptom relief will always be breaking the law when he drives.

    One trusts Pennsylvania authorities are rigorously tracking these people in order to drum up revenue prevent them from harming themselves and others.

  12. Well for one evidently the weed didn’t work, secondly weed still impairs one’s ability to drive, and last of if she was having seizures she should never had been driving at all.

  13. So they never actually legalized the devil weed, did they?

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  15. It is not clear if the pot was intended to treat her epilepsy. If it was, then there is her problem. It’s the non-narcotic CBD oil that shows promise for epilepsy, not THC. Or, maybe she is like the folks in my state were before total legalization – they got prescriptions for pain – complained about a hang nail or past injury.

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