PA MMJ Patients Face Arrest

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In PA, medical marijuana patients are always considered DUI — even if they’re not impaired
Though doctors can legally recommend medical marijuana, hundreds of thousands of Pennsylvanians face arrest, prosecution and conviction for driving.

Desiree Gload said she was driving on Interstate 83 southbound to clean an elderly client’s home in Upperco, Maryland, when she followed a construction sign to merge into the left lane before the Shrewsbury exit on Oct. 21, 2020.

But Pennsylvania State Police Trooper Michael Graybill reported that he watched her 2002 Subaru Outback touch the fog line several times and drift back into its lane, so he turned on his lights and sirens. He said he observed Gload swerve on the shoulder before coming to a stop.

Next, Graybill said, he saw a green flake that appeared to be marijuana.

Later, Gload stated that she had a medical marijuana card and showed him weed that was in a lunchbox in her car. He asked her to perform a field sobriety test and alleged that she showed signs of impairment.

Police arrested and charged Gload with driving under the influence and related offenses. She maintains, though, that she was not impaired.

In Pennsylvania, people with any detectable amount in their system of marijuana or its metabolites — even ones that do not cause a high — are legally considered to be driving under the influence. The law does not include an exception for those who use medical cannabis.

So while approved physicians can legally recommend medical marijuana for conditions including epilepsy, multiple sclerosis and post-traumatic stress disorder, hundreds of thousands of patients face the risk of arrest, prosecution and conviction every time they drive. That’s regardless of whether they’re impaired.

“I don’t understand how they’re fine with me being on these medications, and leaving me in the system, and allowing me to do these medications. But why am I getting in trouble for them in the first place?” said Gload, 37, a self-employed cleaner who lives in Red Lion, in a recent interview.

“I just feel like I’m being set up, basically, by important people,” she added.

In 2016, Gload said, a driver rear-ended her for the latest time in front of her mother’s home in Chanceford Township, Pennsylvania, a community of about 6,100 in York County. She said she now has degenerative disc disease.

At first, Gload said, she saw her family physician. Doctors referred her to a spine specialist, who ordered an MRI and determined that she had issues with two discs in her lower back.

Doctors, she said, felt that she was too young for surgery. So Gload said she started a regimen consisting of physical therapy and pain management.

She started talking prescription painkillers, anxiety medication and muscle relaxers.

Eventually, though, medical payment coverage ran out. Gload did not have health insurance.

“I basically was left to figure it out on my own,” she said.

Gload bought prescription painkillers off the street but said she felt dirty and like a criminal. So she checked herself into Pyramid Healthcare Inc.’s York Inpatient Treatment Center in Hellam Township and started on methadone.

In 2018, Gload began using medical marijuana to help with conditions including opioid use disorder — she said she’s trying to get off methadone. She said she also uses cannabis for post-traumatic stress disorder, extreme anxiety attacks and stomach issues.

Her son, Xavier, suffered a traumatic brain injury at 14. Gload said she decided to store all her prescriptions in a lunchbox with two zippers and a padlock in her car to keep the medication away from him.

Medical marijuana, she said, helps with everything from her breathing to sleeping. She said she was not aware before that she could receive a DUI for using cannabis.

“I know that even to this day, I am extremely scared to even take my own medicine now,” Gload said. “I’m barely getting any sleep. It is affecting my life horribly.”

Gload pleaded guilty on Feb. 10 to driving under the influence, possession of a controlled substance and possession of drug paraphernalia for a sentence of 2 1/2 years’ probation, with three days on house arrest, 10 days of drug testing and a $1,000 fine.

That amount, she noted, does not include court and supervision costs.

The York County District Attorney’s Office dropped a felony count of possession with intent to deliver marijuana.

Senior Deputy Prosecutor Mark Monroe said “the basis for that charge we do not believe would be enough with the evidence we have to prove at trial.”

During the hearing, Gload maintained that she was not impaired and stated that all the medication in her system — which also included methadone and amphetamines — were prescribed.

“Well, do you understand that it is illegal to drive in Pennsylvania with marijuana in your system, whether it is medical or not?” President Judge Maria Musti Cook asked.

“I do now, ma’am,” Gload replied.

She later unsuccessfully tried to withdraw her guilty plea.

Her brother, Nicholas, also uses medical marijuana to help stop seizures and blackouts that he experienced after suffering a head injury at a jobsite in 2016.

He said he was able to get his driver’s license back.

“I wasn’t safe driving for them years until I started on medical marijuana,” said Nicholas Gload, 40, of Dallastown, who is unemployed but does auto body repair work on the side. “To find out I can get a DUI after getting healthy enough to have it — that scares me.”

As of 2021, Pennsylvania is one of 12 states that have zero-tolerance laws for marijuana and driving, according to the National Conference of State Legislatures, a bipartisan, nongovernmental organization with offices in Denver and Washington, D.C.

Five states set specific limits at and above which people are considered to be impaired.

Meanwhile, Colorado allows law enforcement to reasonably infer that drivers are impaired if they have 5 ng/ml of THC, the principal and most active ingredient in marijuana, or more in their system. But people can argue at trial that they were not impaired.

The presence of these compounds, though, does not consistently indicate recent use or impairment, said Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, or NORML, a public interest advocacy organization in Washington, D.C.

People who regularly use marijuana, he noted, also develop a higher tolerance to its effects.

“Look, at the end of the day, everybody wants safe roads, OK?” Armentano said. “The key here is having the ideal tools to be able to differentiate between individuals who are legitimately impaired to the point where they are unsafe drivers, versus individuals who are not impaired.”

Police officers, he said, have access to training programs to help them identify people who are under the influence of substances other than alcohol.

Armentano also pointed to technologies such as DRUID, an app that allows people to evaluate their physical and cognitive impairment. The acronym stands for Driving Under the Influence of Drugs.

In Pennsylvania, there are 406,454 active patients registered in the Medical Marijuana Program, said Mark O’Neill, press secretary for the Pennsylvania Department of Health, in an email.

Meredith Buettner, executive director of the Pennsylvania Cannabis Coalition, a trade organization of medical marijuana permit holders in the state, said she believes that it’s critical for people to not be worried about getting a DUI for taking their medicine.

“We certainly don’t advocate that anyone should drive impaired. That is not something we support,” Buettner said. “But we do understand — which I think the law does not contemplate — that having cannabinoids and THC metabolites in your system does not necessarily equal impairment.”

Right now, there is a push to change the law in Pennsylvania.

State Rep. Chris Rabb, D-Philadelphia, is one of those hundreds of thousands of Pennsylvanians who have legal exposure for taking their medicine.

“There’s no time, realistically, that I don’t have detectable cannabis in my system,” Rabb said. “It’s akin to someone taking a sip of beer, three weeks ago, and having the technology to detect that someone had done so — and being charged with a DUI.”

“Because the technology will confirm that someone has alcohol in their system,” he added. “But it does not determine impairment.”

On April 24, 2016, Rabb witnessed a man get shot and killed in front of him in Philadelphia. The two were having a conversation moments before the murder.

Rabb was diagnosed with post-traumatic stress disorder. He said he later started using medical marijuana tinctures to help with chronic sleeplessness.

The cannabis, he said, does not cause impairment or get him high.

The Defender Association of Philadelphia, he believes, brought the issue to his attention before he became a medical cannabis patient. Rabb said he never thought about how he could get a DUI because he does not drink.

“I drive 104 miles from Philadelphia to Harrisburg. So I always had a great amount of trepidation just being a Black driver,” Rabb said. “Now, it’s significantly higher.”

Now, Rabb is a prime co-sponsor of HB 900, which would remove the zero-tolerance provision in the DUI law for medical marijuana patients.

Meanwhile, state Sen. Camera Bartolotta, R-Beaver, Greene and Washington counties, is the prime sponsor of SB 167, which would require law enforcement to have proof of actual impairment for DUI when it comes to medical marijuana patients.

The Pennsylvania District Attorneys Association supports the legislation.

Bartolotta said her proposal would not allow people to drive while they’re impaired. The legislation, she said, would protect those who are not under the influence from facing a criminal charge that will follow them and harm their work, family and reputation.

“No one should be made a criminal because they’re taking something that alleviates anxiety or depression or PTSD or Parkinson’s,” she said.

On Sept. 21, 2021, the Senate Transportation Committee held a hearing on her bill, which featured testimony from those ranging from a medical marijuana patient who was initially prosecuted for DUI as well as law enforcement.

Patrick Nightingale, a defense attorney and executive director of Pittsburgh NORML, testified that he believed the zero-tolerance provision in the DUI law was the “most critical issue” facing medical cannabis patients in Pennsylvania.

Toward the end, Bartolotta asked representatives from the Pennsylvania State Police whether people who have medical marijuana cards should be arrested, charged and prosecuted for DUI if they are not impaired.

“No,” replied Cpl. John Witkowski, supervisor of the Driving Under the Influence and Drug Recognition Expert programs, “if they are not impaired.”

In an 18-page page opinion dated on April 5, the Pennsylvania Superior Court reversed a decision from a Jefferson County judge who ruled that the Medical Marijuana Act creates an affirmative defense for patients charged with driving under the influence.

An affirmative defense is one in which a person admits to committing an act but tries to justify or excuse his or her actions. Prosecutors then have the burden of disproving the defense.

The three-judge panel described the area of the law as “fluid and evolving.” The opinion is not precedential.

The ruling references proposed legislation that would change the DUI law: HB 900 and SB 167.