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Pennsylvania State Police troopers didn’t have probable cause to search a car that smelled like marijuana after they were shown a passenger’s valid medical marijuana ID, a Lehigh County judge ruled recently.

Does this mean that Pennsylvania medical marijuana patients can get behind the wheel with impunity? Not so fast, say legal experts. The Lehigh County case involved a single situation with a vehicle passenger, so medical marijuana users still need to abide by DUI laws and use some common sense as they travel the roads.

The Lehigh County case

In November 2018, State Police troopers in Allentown witnessed a traffic violation and pulled over a car driven by a woman whose husband was a passenger. The trooper approaching the car claimed to smell both burnt and raw marijuana. The passenger showed his legally issued medical marijuana ID card, but troopers said that the marijuana odor gave them the right to search the vehicle.

Their search yielded small amounts of green, leafy marijuana in an unmarked baggie. One of the troopers conducting the search believed dried marijuana leaf was not legal for medical purposes.

At a hearing on the case, the physician who certified the passenger’s qualification for medical marijuana use testified that “there is no distinguishable physical difference between the green leafy medical marijuana and regular marijuana purchased on the streets. Indeed, the chemical compositions are the same.” He also noted that legally vaping medical marijuana produces the same odor as smoking marijuana via cigarette or pipe – a form that’s not legal under Pennsylvania’s Medical Marijuana Act.

Lehigh County Judge Maria Dantos ruled that the troopers “did not possess probable cause to conduct a search,” that the search “was unlawful,” and that evidence seized, including an illegally possessed handgun, “was unlawfully obtained and must be suppressed.”

Pennsylvania’s medical marijuana patients, Dantos ruled, “are permitted lawfully to smell like marijuana.”

“As marijuana has been legalized in Pennsylvania for medicinal purposes, the plain smell of burnt or raw marijuana is no longer indicative of an illegal or criminal act,” she continued. The troopers’ conclusion of “criminal activity afoot,” despite seeing the passenger’s valid medical marijuana card, was “illogical, impractical, and unreasonable.”

The case, however, demonstrated “a clear disconnect between the medical community and the law enforcement community,” Dantos wrote. “Pennsylvania legislators did not contemplate that people with legal medical marijuana cards would be arrested and prosecuted for possession of marijuana in a package that is not clearly marked with a dispensary name on it.”

Driving and medical marijuana use

Driving while impaired by marijuana, medicinal or not, is illegal and grounds for DUI prosecution. Attorneys and law enforcement professionals agree that holders of medical marijuana ID cards should never get behind the wheel while under the influence.

“The fact remains you cannot drive a motor vehicle under the influence of a substance if the substance impairs your ability to operate a motor vehicle,” Berks County District Attorney John Adams, a member of Pennsylvania’s Medical Marijuana Advisory Board, said in January.

However, that’s where clarity ends. Defense attorneys note that Pennsylvania law allows drug-related DUI charges on any driver with any amount of a Schedule I, II, or III controlled substance in the blood – even if the drug was consumed days ago and any impairment is long past. The presence of drug residue called metabolites in the blood is illegal for drivers and can invite charges.

So, what should Pennsylvania’s motoring medical marijuana patients do to protect themselves from arrest? The Pennsylvania Department of Health encourages medical marijuana patients to follow the three C’s when transporting their medication:

  • Have your medical marijuana card on hand and accessible.
  • Transport the medicine in its originally dispensed container.
  • Have your cash receipt with you, the one provided by the dispensary that shows the purchase of the product.

The Health Department has been working with State Police, Team DUI, and others “to train local and state law enforcement about medical marijuana in Pennsylvania, the products that are available and what containers the products are in,” said a department spokesperson.