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Anatomy of a Pennsylvania DUI Offense: What Constitutes “Drugged Driving,” or Driving Under the Influence of a Controlled Substance?

By United States Fish and Wildlife Service [Public domain], via Wikimedia CommonsMost discussions of the laws regarding driving under the influence (DUI) in Pennsylvania focus on alcohol and chemical testing for blood alcohol content (BAC). The Pennsylvania DUI statute also applies to various “controlled substances,” which includes marijuana and other illegal drugs, as well as certain medications obtained with a valid prescription. In the case of illegal drugs, the mere presence of the drug above certain thresholds is sufficient to establish DUI, regardless of whether the driver is actually impaired. If the driver is under the influence of legally prescribed medications, prosecutors must prove a level of impairment that prevents the safe operation of a motor vehicle.

The Pennsylvania DUI statute identifies three levels of impairment due to alcohol, based on chemical testing within two hours of driving. Pennsylvania’s implied consent statute enables police to obtain breath or blood samples to establish BAC. The DUI statute does not identify specific amounts of other controlled substances but rather focuses on their legality. The determination of whether a drug is “illegal” is based on the schedules established by the Controlled Substance, Drug, Device, and Cosmetic Act, first enacted in 1972. An “illegal” drug, for the purposes of the DUI statute, is any Schedule I controlled substance, any Schedule II or III substances for which the driver does not have a valid prescription, or the metabolites of any of those substances.

State law defines Schedule I controlled substances as those with “a high potential for abuse,” “no currently accepted medical use,” and no accepted safety standards. This includes marijuana, despite the fact that other states have found it acceptable for medical use and, in at least one case, recreational use. Schedule I also includes heroin, hallucinogens like LSD and peyote, and psychedelic compounds like psilocybin.

Schedule II controlled substances have a “high potential for abuse” with the possibility of “severe psychic or physical dependence,” but they also have some accepted medical uses. They include certain opium-derived substances, cocaine, amphetamines, and other substances that might be considered illegal drugs but also have pharmaceutical uses. Schedule III drugs have a lower potential for abuse, more generally-accepted medical uses, and a risk of “moderate to low physical dependence.” These include certain barbiturates and low-dosage narcotic substances.

Breath testing cannot show whether drugs are present in a person’s system, so police must use blood or urine tests. State law establishes minimum levels of specific drugs, generally those that have readily available testing methods, required to establish that a person has that substance in his or her blood. For marijuana, that amount is one nanogram per milliliter (ng/ml), which is nearly the smallest detectable amount.

For Schedule I controlled substances, as well as Schedule II and III substances for which a person lacks a prescription, the DUI statute does not require proof that the person was impaired by the substance. Prosecutors only have to prove that “any amount” of the substance was present in the person’s blood within two hours of driving. In 2007, the Pennsylvania Superior Court held in Comm. v. Etchison that “impairment” is not a required element of the offense of driving under the influence of a Schedule I controlled substance, and that this does not violate the state’s Equal Protection Clause. Other sections of the DUI statute require proof of impairment.

If you have been charged with alleged DUI in Pennsylvania, a qualified and skilled DUI attorney can advise you of your rights and help you prepare the best possible defense. Zachary B. Cooper has dedicated 100% of his practice to defending DUI cases. To schedule a free and confidential consultation with our legal team, please contact us online or at (215) 542-0800.

More Blog Posts:

How Is this Constitutional? Pennsylvania Police Arrest 13 in One Weekend at Delaware County “Sobriety Checkpoint”, Pennsylvania DUI Lawyers Blog, August 12, 2014

Pennsylvania House Passes Bill Increasing Penalties in Certain DUI Cases, Pennsylvania DUI Lawyers Blog, August 6, 2014

New Pennsylvania Law Closes Alleged Loophole that Encouraged Drunk Drivers to Flee the Scene of Certain Accidents, Pennsylvania DUI Lawyers Blog, July 21, 2014

Photo credit: By United States Fish and Wildlife Service [Public domain], via Wikimedia Commons.