Every Friday we take a look at some of the most commonly asked questions about Pennsylvania DUI so we can clear up any misconceptions and provide you with the most up-to-date and accurate information about PA  DUI laws and related topics. Today:

Dear Justin,

Someone was talking about K2 and Spice, a “synthetic marijuana”, and said that it was not illegal under PA law but they said that you can get a DUI for it because it doesn’t show up on blood tests.  Is this true.

Recently there has been a lot of buzz about synthetic marijuana products like K2 and Spice.  While they are currently not illegal in Pennsylvania, The United States Drug Enforcement Administration (DEA) is using emergency measures to make these products illegal nationwide. It is not a controlled substance as recorded in the Pennsylvania Bulletin or the Code of Federal Regulations.  At least as of today, it is legal to possess, sell and use.

It is true that these products which use use the chemicals JWH-018, JWH-073, JWH-200, CP-47,497, and cannabicyclohexanol, do not show up on normal DUI blood tests.  It takes a specialized column method that most state crime labs do not employ.

Most police officers and DA’s in Pennsylvania incorrectly believe that you can still end up with a DUI as a result of their use.  That they say is because the Drug Recognition Expert procedure currently used in Pennsylvania is based mostly on physical observations and not on blood test results.

There are two basic problems with this.  First, even ignoring the law, which we will get to in a minute, the DRE protocol has not been screened, tested or validated with these compounds in mind.  The truth is that there is no data for a DRE officer to use in terms of the drug’s response to the DRE 12-step program.  Perhaps the IACP and NHTSA are simply assuming that there will be a similar response to that of marijuana.  In true science one cannot make such an assumption.  So, in short, the DRE tool, even if it is valid to determine impairment (which I and most pharmacologist agree does not) it certainly has not been validated for these compounds.

Second there is this pesky thing called the law.  Let’s look at the law which is found in title 75 of the Pennsylvania Vehicle Code Section 3802.  It reads in pertinent part as follows:

(a) General impairment.–

(1) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.

…

(d) Controlled substances.–An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:

(1) There is in the individual’s blood any amount of a:

(i) Schedule I controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act;

(ii) Schedule II or Schedule III controlled substance, as defined in The Controlled Substance, Drug, Device and Cosmetic Act, which has not been medically prescribed for the individual; or

(iii) metabolite of a substance under subparagraph (i) or (ii).

(2) The individual is under the influence of a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive, operate or be in actual physical control of the movement of the vehicle.

(3) The individual is under the combined influence of alcohol and a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive, operate or be in actual physical control of the movement of the vehicle.

(4) The individual is under the influence of a solvent or noxious substance in violation of 18 Pa.C.S. § 7303 (relating to sale or illegal use of certain solvents and noxious substances).

As we can see from the above, as these compounds have not been determined by the Pennsylvania Department of Health or the US FDA as a controlled substance (Schedule I or II) and has not been adjudicated as a “drug” which has a specific meaning under the FDA and the Pennsylvania Drug Device and Cosmetic Act.  As such, its prosecution under the Pennsylvania DUI statute is questionable.

The Federal Food, Drug, and Cosmetic Act can be summed up as follows:

The FD&C Act defines drugs, in part, by their intended use, as “articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease” and “articles (other than food) intended to affect the structure or any function of the body of man or other animals” [FD&C Act, sec. 201(g)(1)]

The Pennsylvania Drug Device and Cosmetic Act defines a “drug” as follows:

“Drug” means: (i) substances recognized in the official United States Pharmacopoeia, or official National Formulary or any supplement to either of them; and (ii) substances intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals; and (iii) substances (other than food) intended to affect the structure or any function of the human body or other animal body; and (iv) substances intended for use as a component of any article specified in clause (i), (ii) or (iii), but not including devices or their components, parts or accessories.

This distinction of defining the term “drug” is important.  If one reads the legislative history during its drafting of the law, it is this very distinction and the non-adjudication of the word “drug” that specifically lead the Pennsylvania legislature to include inhalants in section (d)(4) above.

Having said all of that, I offer a simple piece of advice.  Just because you may be able to do something, doesn’t mean you should.  There are two different reasons:

(1) Safety-at the time of this post the pharmacodynamics of these compounds is not clear.  It is not well studied.  It is unclear as to the affect that these compounds have when used.  There are a lot of anecdotal reports that trickle in, but no peer-reviewed studies as to their effects.  As such, I personally highly recommend against using them generally and specifically when operating a car.  Think about your safety and that of others.

(2)  The law–  All of this has not yet been litigated fully.  The police will certainly charge you with a DUID.  The question of conviction is a whole other thing.  Having represented a lot of good folks charged with a DUI or DUID, I can tell you that the process that you will undergo is a nightmare.  You don’t want to go through it if you can avoid it.

Justin McShane

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.