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A recent article reported that in Canada, it is easier to prosecute a defendant for driving under the influence of alcohol than driving under the influence of a drug. In Pennsylvania, this is not the case.

The Pennsylvania DUI Statute (75 Pa.C.S.A. Section 3802) says that a person cannot be in control of a motor vehicle if s/he has any trace of a controlled substance or its metabolite in his/her blood. Therefore, if the blood test returns any amount of a controlled substance, no matter how small, you can be convicted under 75 Pa.C.S.A. Section 3802(d). This is problematic for a few reasons, the biggest of which is the fact that drugs can stay in your system for weeks. Thus, a defendant can be charged and convicted of 3802(d) even if they aren’t under the influence of the controlled substance when operating the vehicle.

In Commonwealth v. Etchison, 916 A.2d 1169 (Pa. Super. 2007), an appellant argued that Section 3802 is vague and overly broad since it punishes someone for simply driving with the trace of a drug in their system without requiring the person to be under the influence of that drug. The Superior Court disagreed. The sole dissenter in Etchison made a compelling argument against Section 3802(d). In his concurring and dissenting opinion, Judge Bender agreed with the appellant and noted that a person could legally smoke marijuana in the Netherlands, come back to the United States, and be convicted of Section 3802. However, the PA Supreme Court affirmed the Superior Court’s decision in March 2008.

Therefore, under the current state of the law, if you are found with any amount of a controlled substance in your system, you can be convicted of DUI under Section 3802(d).

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