How Marijuana Reclassification Affects DUI Charges in Pennsylvania

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Federal reclassification of marijuana has raised important questions for Pennsylvania drivers. The impact is limited, but it meaningfully changes DUI cases for medical marijuana cardholders.

Pennsylvania Drug DUI Law in Brief

Under 75 Pa.C.S. § 3802(d), drug DUIs fall into two categories:

  • Per se DUI (§ 3802(d)(1)): Any amount of certain drugs or their metabolites in the blood is enough for a charge. The Commonwealth does not need to prove impairment.

  • Impairment DUI (§ 3802(d)(2)): The Commonwealth must prove the driver was actually impaired and unable to drive safely.

What Changes and What Does Not

  • Drivers without a medical marijuana card: No practical change. Active THC or THC metabolites can still support a per se DUI.

  • Drivers with a medical marijuana card: This is where the law shifts. These cases now fall under the impairment subsection. Presence of THC alone is not enough. Prosecutors must prove actual impairment.

Why This Matters

Proving marijuana impairment is far more difficult than proving alcohol impairment. There is no agreed-upon THC level that reliably shows impairment, which places greater emphasis on:

  • Officer observations

  • Field sobriety testing

  • The basis for probable cause

  • Expert testimony and scientific limitations

How The McShane Firm Fights These Cases

This change creates real defense opportunities, especially for medical marijuana patients. At The McShane Firm, attorneys can:

  • Challenge whether police had sufficient probable cause to investigate impairment

  • File suppression motions targeting unlawful stops, testing, or blood draws

  • Expose weaknesses in the Commonwealth’s attempt to link THC presence to actual impairment

  • Cross-examine officers and experts on the lack of reliable marijuana impairment science

  • Take cases to trial when the evidence falls short of proving impairment beyond a reasonable doubt

Bottom Line for Pennsylvania Drivers

  • Marijuana reclassification does not make it legal to drive while impaired.

  • Drivers without medical cards see little change.

  • Medical marijuana cardholders now have stronger legal protections, because the burden shifts to the Commonwealth to prove impairment.

If you are facing a marijuana-related DUI charge, especially as a medical marijuana patient, this shift in the law may significantly affect your case.

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  • 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.
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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 Avvo.com. 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.