Can I get a DUI for using medically approved Marijuana?

In Pennsylvania, if I am lawfully using medical marijuana, can the police charge me with DUI? Can I get a DUI marijuana charge for using my lawfully prescribed and used medicine? Yes, you can!


That I cannot answer. What I can provide you is the truth: they can and will charge you with DUI if you used your medical marijuana.


In Pennsylvania, we legalized medical marijuana. But our DUI laws did not change. Our DUI law holds that one cannot drive with ANY amount of a schedule I controlled substance in their blood. Marijuana is still a schedule I controlled substance in Pennsylvania. ANY amount means ANY AMOUNT. Any amount of the active metabolites: delta-9 THC and 11-hydroxy THC. And any amount of the inactive metabolite of marijuana: delta-9 carboxy THC.

But, marijuana, especially the inactive metabolite, remains in one’s blood for days after last use.

How is the presence of an inactive metabolite a DUI in PA?

Simple answer is because of state General Assembly says so. But, it’s not how we commonly think of the concept of DUI. When you ask most folks if you can get a DUI even if you are not drunk or high, they will tell you that you can’t. But in PA that is 100% false. You can get an alcohol DUI based not only on impairment, but also because of your BAC level. Some folks are very functional alcoholics. They are rare but they exist. They can have high BACs but may not show much in the way of impairment. Again, it is very rare, but possible.

The same type of concept but uniquely different is true when it comes to Schedule I substances in PA. Remember PA still calls even medical marijuana a Schedule I substance. You can be as sober as Mother Theresa, but that break-down product called a metabolite can remain in your system. How long mj metabolites stay in your system varies based upon:

  • usage
  • the amount of fat you store
  • exposure intensity
  • exposure length

Any amount of marijuana in one’s blood is a DUI in Pennsylvania.

One who uses medical marijuana every day will always have a marijuana metabolite in their blood. It lasts for several days or weeks, depending.

What can someone who has a medical marijuana card but gets a DUI for marijuana use do?

You shouldn’t have to pick between your medicine and driving. But until the law is updated, technically, that’s what you may have to do.

The best thing you can do is hire a criminal defense attorney who specializes in DUI and specifically in DUID-mj cases. We fit all the checkboxes.

How we defend folks

Primarily as the technical reading of the law is against you, we look to use our decades of relationship building with the police and DAs to have them go pick on anyone else but you. If not, we are ready for the fight. We look to discredit the analytical chemistry result.

Problems with DUI Blood Tests in Pennsylvania

Pointing to The Medical Marijuana Act, we teach the judge, DA and police about the legislative intent of the medical Mariana law. It reads that:

“None of the following shall be subject to arrest, prosecution or penalty in any manner, . . . solely for the lawful use of medical marijuana . . . A patient.”

Per this, a patient cannot be subject to arrest or prosecution for the lawful use of marijuana.

So, with this very explicit law, you might ask:

“How on earth can the police charge a medical marijuana patient with DUI?”

Because the DAs office or the police may not know about this point in the law. Plus, the courts and our legislature are behind the times on the scientific facts.

The Courts are just starting to hear these cases. You need a great attorney and an expert to fight the charges. Do not let the police, prosecution, and courts trample your right to use medical marijuana. Fight for your rights! Hire us and let us fight for you!

Additional recommended reading:

Our Clients are entitled to a Bill of Rights which states:

  • Our clients have the right to expect, we will be proactive in communication. You will hear it from us first. We will return all phone calls, texts and emails promptly.
  • Our clients have the right to expect plain speaking, straight shooting. No B. S.
  • Our clients have the right to expect us to do it right the first time, every time.
  • Our clients have the right to expect us to be on time and professionally prepared for all court appearances, and all meetings.
  • Our clients have the right to expect that they will be fully informed at all times.

This is our promise to you. Call today to get us on your side: (717) 657-3900.

PA DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency.