Most people think, however, that drugged driving only pertains to illegal drugs such as cocaine, marijuana (non medical), and heroin but this is simply wrong

Alfonso Gambone
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A Philadelphia criminal defense lawyer representing accused persons throughout Pennsylvania and New Jersey.

Drunk and Drugged driving is always a hot topic for Philadelphia Criminal Defense Lawyers.  Our law firm handles these cases on a regular basis.  During our initial consultation with clients charged with this offense, we explain a number of issue and answer the questions that they have regarding this criminal offense.  I encourage you to watch my video on Drunk Driving Defense for more information. 

 

DUI Isn’t Limited To Alcohol In Pennsylvania and New Jersey

Most people assume that driving under the influence or impaired is limited to alcohol, but Pennsylvania’s DUI statute also covers drugged driving.  Remember that a person can commit a DUI in Pennsylvania and a DWI (Driving While Intoxicated) in New Jersey even if they are taking prescription or over the counter medication.  Most people think, however, that drugged driving only pertains to illegal drugs such as cocaine, marijuana (non medical), and heroin but this is simply not the case.   

 

Pennsylvania’s DUI Statute Is Broad – Legal & Illegal Drugs  

You can commit a DUI or DWI even if you’re taking a legally proscribed drug or a drug that you purchased over the counter.  Under 3802(d)(2), the district attorney (prosecution) only has to establish the following beyond a reasonable doubt

  1. Person was under the influence of any drug or combination of drugs
  2. To a degree that impair that person’s ability to safely drive, operate or be in control of the movement of motor vehicle

 

Section 3802(d)(2) is written very broadly and this was done on purpose to DUI related injuries and deaths.  Section 3802(d)(3) is very similar.  Under 3802(d)(3), the district attorney (prosecution) only has to establish the following beyond a reasonable doubt 

 

  1. Person was under the combined influence of alcohol and a drug or combination of drugs

 

  1. To a degree that impair that person’s ability to safely drive, operate or be in control of the movement of motor vehicle

 

States like Pennsylvania and New Jersey have created broad DUI/DWI statutes because the safety of drivers and their families is obviously a major concern.  Notice that neither section of the DUI statute doesn’t require the prosecution to introduce any blood evidence or results of chemical test (breathalyzer)  Read my article on breathalyzers. 

 

In addition to Section 3802(d)(2) and 3802(d)(3), there are is Section 3802(d)(1). This section requires that the prosecution introduce chemical evidence (blood test) which shows a schedule I, or a non proscribed II, or III controlled substance in a person’s blood at the time of their arrest.

 

No 2 Hour Rule For Drugged DUI in Pennsylvania

There is no 2 hour rule regarding drugs unlike alcohol. A DUI based on alcohol under sections 3802(a) 2, 3802(b), 3802(c) all require that the prosecution establish a BAC level within two (2) hours after a person has operated or been in control of a vehicle.

Section 3802(d)(1) requires that the prosecution present evidence that a drug was in a person’s body at the time of their arrest. Under this section, however, the prosecution must present a minimum drug level for it to be admissible (used against you) in court. This drug level pertains to the actual drug or a metabolite of the drug. A metabolite is the result when a drug is metabolized by the body into a modified form which continues to produce effects in the body.

These effects are similar to those of the parent drug which can, in some cases, actually be stronger than the parent drug. The prosecution must produce the following minimum levels:

  • Amphetamine (schedule II) – 10 nanograms
  • Methamphetamine (schedule II) – 10 nanograms
  • Methadone (schedule II) – 50 nanograms
  • Marijuana (THC) (schedule II) – 5 nanograms
  • Cocaine (schedule II) – 20 nanograms
  • Phenclidine (PCP) (schedule II) – 5 nanograms
  • Codeine (schedule II) – 10 nanograms
  • OxyCodone (schedule II) – 10 nanograms
  • Hydrocodone (schedule II) – 10 nanograms
  • Monoacetylmorphine (heroin) (schedule II) – 10 nanograms

Drug Testing & Drugged DUI Defense – Don’t Count on It!

Drug testing is a two-step process. The first step identifies the actual substance or its metabolite in the blood. The second step is much more complicated and it measures the concentration of the substance and its quantity. Even if the prosecution can’t establish a minimum amount of a drug or its metabolite it can still prosecute and convict a person under section 3802(d)(2) or 3802(d)(3).

Remember that these other section don’t require the prosecution to introduce any specific drug level but only testimony that the person was unable to operate the vehicle safely on a city street or road within Philadelphia or within the Commonwealth of Pennsylvania.

 

The prosecution witness, usually a police officer, will testify that based on their experience the person was under the influence of a drug or a combination of drug and therefore unable to operate a (car) vehicle safely in Pennsylvania.  This will meet the burden of proof!  If you have more questions about DUI in Pennsylvania pick up a copy of my book – 5 Ways to Fight and Win your Pennsylvania DUI case and my other book on DUI

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