Ithaca DWI Lawyer: Warns New York Students That Get High Don't Get Stopped in PA

College Memories

New York State and Pennsylvania are places of great similarity and contrast. I have practiced DWI defense in both, and the laws, rules, and procedures are night and day. For those that smoke pot in New York the DWAI drugs "driving while impaired by a drug" driving charge, and the required proof for that offense morphs into something far different and ultimately more dangerous just below us in Pennsylvania.

Pennsylvania DUI Drugs Marijuana Has A Very Low THC Threshold of 1 Nanogram

"Per Se" DUI offenses are for specified amounts of drugs or alcohol in your system at or near to the time of driving. New York has "per se" alcohol offenses of DWI VTL 1192 (2) for .08 or more and Aggravated DWI VTL 1192 (2) (1) (1) for .18 or more alcohol. New York has NO "per se" offense for marijuana.

Many legal marijuana states like Colorado and Washington have established "per se" thresholds for driving under the influence (being impaired) by pot of 5 nanogram. In 2011 the state of Pennsylvania lowered their "per se" marijuana to ONE NANOGRAM. One nanogram of THC is just a billionth of a gram.

New York State has no "per se" offenses for any drug except alcohol.

Pennsylvania DUI Doesn't Even Require Impairment by a Schedule 1 Substance like Marijuana

New York State DWAI drugs VTL 1192 (4) requires actual "impairment" by a drug. Marijuana or some other drug has to be shown to be the cause of that impaired driving. In Pennsylvania just having a schedule 1 controlled substance in your body shown by urine or blood or salvia is enough to convict you of DUI drugs.

New York State requires four elements under People v. Kahn, 610 N.Y.S.2d 701 (1994) -- 

The elements of proof are: (1) the defendant ingested a drug; (2) the drug ingested by the defendant is one proscribed New York's Public Health Code; (3) after ingesting the drug, the defendant operated a motor vehicle; and (4) while operating, defendant's ability to operate the motor vehicle was impaired by the ingestion of the drug.

Pennsylvania DUI Doesn't Require a Showing of ACTIVE THC by a Schedule 1 Substance like Marijuana

In Pennsylvania any Schedule 1 drug form whether active or even a drug metabolite (inactive) is enough to convict for DUI drugs. Remember that drug metabolites are the waste products of active substance drugs, and linger in the body for days to weeks after the active drug has worn off. Pennsylvania DUI requires merely a showing of controlled substance, schedule 1 drug and driving, NOT impairment and NOT even active drug.

Marijuana starts out as active Delta 9 THC and then breaks down into carboxy and hydroxy THC over the course of time. Sometimes these substances (the metabolites) are found in the body up to 30 days after first ingestion.

In great contrast, New York State is a ACTIVE substance delta 9 THC state in that the government must prove active substance in blood (if they are using blood proof), and impaired driving at or close to time of arrest.

Pennsylvania DUI Drugs Marijuana has a Lower Standard of Proof Than New York DWAI Drugs Marijuana 

Because of Pennsylvania's draconian marijuana laws and rules when it comes to driving under the influence or being impaired by marijuana New York State is a much "better" state to be in. We do not condone impaired driving of any sort but we do believe people are entitled to know and understand the laws and rules which govern DUI and DWI prosecution. 

We advise for your own protection do not take (ingest, eat, smoke) marijuana, and then drive through Pennsylvania till it is completely out of your system. Unfortunately unlike New York State JUST having a Schedule 1 drug in your system is enough in some states to sustain a DUI drugs conviction.