Laws regarding marijuana have been one of the fastest evolving parts of the criminal justice system. In recent times, there has been an obvious change in the attitudes toward marijuana and its use in one form or another. However, the rapidity with which the marijuana laws have evolved has resulted in a patchwork of hodgepodge and often disconnected laws.
Marijuana in Pennsylvania
A large majority of states have adopted laws that legalize cannabis use for medical reasons, and almost half the states have also legalized the recreational use of marijuana. However, marijuana remains illegal at the federal level and is still regulated by the 1970 Controlled Substances Act.
Pennsylvania allows some medical, but not recreational, use. Commonwealth residents can qualify to obtain a medical cannabis ID card to purchase and use medical marijuana in approved forms, but even with a medical card you still can’t smoke a joint.
Moreover, there are still certain aspects of the law that haven’t caught up with some of these recent changes. On one hand, even though marijuana possession and use are still often illegal in Pennsylvania, enforcement, and penalties for such use is much less stringent than it used to be. However, there are certain things that many residents, and even non-residents, don’t consider in regard to any type of marijuana use.
The Commonwealth’s DUI Laws
Foremost among these considerations are Pennsylvania’s DUI laws. In Pennsylvania, there are three tiers of DUI violations. In order of severity, they are Tier 1 which is for blood alcohol level of .08-.099%, Tier II which is a blood alcohol of .10 to .159%, and Tier III which is for blood alcohol of .16% and above AND for Controlled Substances. This is where many people run afoul of the law because marijuana is still considered a controlled substance under the law and traces of THC, one of the ingredients in marijuana, can stay in your system for up to a month or more, depending on use.
For example, suppose an individual uses marijuana in another state where recreational use is legal. A month later they could be pulled over and cited for DUI based on trace amounts of THC still being in their blood. Likewise, even if you have a medical marijuana card, and you use cannabis products under a doctor’s instructions, you are still prohibited from driving while the THC is in your system, which will be practically all the time. Hopefully at some point, the DUI laws will catch up to the rest of the changes. THC metabolites have both active, which affects a person’s physiology, and inactive components, which means they no longer affect things like perception and reflexes. A good first step would be to stop criminalizing driving when only the inactive metabolites, which linger in the system far longer, remain.
One step, however, which Pennsylvania has taken, is to introduce a new Expedited Review Program for pardons for many non-violent marijuana convictions. As anyone who has ever received a criminal conviction knows, having convictions on your record can affect applying for jobs, housing, college, as well as background clearances for everything from adoption to coaching Little League. Applying for a pardon is traditionally a long and arduous affair that can take up to five years or more just to get a decision, which is not always favorable.
The Expedited Program is designed to speed up that process where the convictions pertain specifically to marijuana.
Eligible offenses include possession of small amounts of marijuana for personal use; possession of small amount with intent to distribute; possession of drug paraphernalia; felony possession with intent to deliver (marijuana only); and the aforementioned marijuana-related DUI where the DUI was incurred by a lawful medical marijuana cardholder in Commonwealth.
There are certain qualifying conditions (the individual can’t have any prior convictions classified as violent offenses), and the “Expedited” Program will still likely take a year or even more from application to decision. Anyone considering applying under this program should seriously consider using an experienced attorney to handle the process. But at least this is a first step in recognizing the hardship these types of convictions can have on a person, and addressing convictions for things that are slowly evolving to become legal and accepted in our society.
For many other types of convictions, unrelated to marijuana, there are other ways to clear those convictions including filing for expungements and sealing records. Like a pardon, these processes have their own requirements, and having an experienced attorney can make the difference between walking away with a clean record or running into procedural hurdles that leave you with an adverse decision by the court.
Liliana G. Fisher
Liliana G. Fisher is a bilingual litigation attorney skilled in managing all phases of legal action from investigation, pleadings, and discovery to pre-trial, trial, settlement, and appeal process. She uses her extensive litigation experience to represent clients in both English and Spanish and is licensed to practice in Pennsylvania and New Jersey. Before joining CGA Law Firm, Liliana served as a Deputy Trial Prosecutor in the York County District Attorney’s Office.
Read Liliana’s Bio Page in full here.
Stephen R. McDonald
Litigation Chair | Shareholder | Attorney
Stephen R. McDonald is Co-Chair of the Litigation Group and a Shareholder at CGA Law Firm and a seasoned litigator who joined the firm in 2017, bringing his wide-ranging background of legal experience to the firm’s Litigation group. Since joining CGA he has been involved in litigation in such diverse areas as automobile and property insurance, real property, construction contracts, estate and inheritance claims among others.
Read Steve’s Bio Page in full HERE.