J-E03005-21
2022 PA Super 65
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
RIVER GARRETT STONE : No. 828 WDA 2020
Appeal from the Order Entered July 24, 2020
In the Court of Common Pleas of Clearfield County Criminal Division at
No(s): CP-17-CR-0000602-2019
BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., OLSON, J., STABILE,
J., KUNSELMAN, J., NICHOLS, J., KING, J., and McCAFFERY, J.
OPINION BY NICHOLS, J.: FILED: APRIL 12, 2022
The Commonwealth appeals from the July 24, 2020 order denying its
challenge to the proposed jury instruction filed by Appellee River Garrett
Stone. The Commonwealth argues that the trial court erred when it agreed
to instruct the jury that (1) medical marijuana is not a Schedule I controlled
substance under Pennsylvania law;1 and (2) in order to convict Appellee of
Driving Under the Influence (DUI) in violation of 75 Pa.C.S. § 3802(d)(1), the
Commonwealth was required to prove that the source of the marijuana
discovered in Appellee’s bloodstream was non-medical marijuana as opposed
to medical marijuana. For the reasons herein, we are constrained to conclude
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1 As explained below, there are Schedule I controlled substances under both
federal and state law. For purposes of our discussion, “Schedule I controlled
substance” refers to Pennsylvania law unless otherwise specified.
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that the trial court’s ruling constituted legal error, therefore we reverse and
remand this matter for further proceedings.
The trial court summarized the relevant facts of this case as follows:
On May 25, 2019, Trooper Brian Elensky was on patrol monitoring
traffic and running radar on State Route 322 in Lawrence
Township, Clearfield County. At approximately 6:00 p.m., he
observed a vehicle which appeared to be traveling at a high rate
of speed in the posted 55 mph speed limit. The Trooper’s radar
gun showed the vehicle to be traveling 74 mph. The vehicle was
stopped [by the Trooper,] and [the driver of the car was Appellee].
As the Trooper approached [Appellee,] he smelled an odor or
burnt marijuana and noticed the driver’s eyes appeared slightly
bloodshot and watery.[2] [Appellee] told Trooper Elensky [that]
he had a medical marijuana card but indicated he did not have it
in his possession. Upon further questioning[, Appellee] handed
the Trooper a plastic bag containing a small amount of marijuana.
Sobriety tests were then conducted and[, Appellee] was arrested
for driving under the influence.
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2 Recently, in Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021), our Supreme
Court held that the smell of marijuana alone does not establish probable cause
to conduct a warrantless search of a vehicle, but it may be considered as a
factor in evaluating the totality of the circumstances. In that case, the seized
marijuana was identified by the appellant as medical marijuana, and he
produced a medical marijuana identification card that allowed him to possess
and consume medical marijuana pursuant to the Medical Marijuana Act, 35
P.S. §§ 10231.101-10231.2110 (MMA). On appeal to our Supreme Court, the
Majority noted that prior to the MMA’s enactment, marijuana was per se illegal
under the Controlled Substance, Drug, Device, and Cosmetic Act (CSA), 35
P.S. §§ 780-101–780-144. Barr, 266 A.3d at 40. However, after considering
the juxtaposition of the MMA and the CSA, the Majority concluded that,
because of the MMA, marijuana was no longer per se illegal in the
Commonwealth of Pennsylvania. Id. at 40-41. Further, the Majority observed
that to the extent the MMA conflicts with the CSA, the MMA “shall take
precedence” and, therefore, “compliance with the MMA will not constitute a
crime under the CSA.” See id. at 41 (citing 35 P.S. § 10231.2101, and
Commonwealth v. Barr,
240 A.3d 1263, 1278 (Pa. Super. 2020)).
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At the time of the preliminary hearing, [Appellee] was represented
by counsel and executed a Waiver thereof. The Commonwealth
filed an Information which contained various counts. Count [1]
charged driving under the influence of controlled substance – 3rd
offense under 75 Pa.C.S. § 3802(d)(1)(i) felony of the third
degree and alleged that [Appellee] drove while there was any
amount of a Schedule I controlled substance in his blood, namely
marijuana. Count [2] also charged driving under the influence of
controlled substance – metabolite –3rd offense under 75 Pa.C.S. §
3802(d)(1)(iii) felony of the third degree and alleged that
[Appellee] did operate the vehicle while there was any amount of
a metabolite of a Schedule I controlled substance in his blood,
again marijuana. Other charges listed in the information include
driving under the influence of a drug or combination of drugs, 3rd
offense (Section 3802(d)(2)) misdemeanor of the first degree;
possession of a small amount of marijuana; use or possession of
drug paraphernalia; and various traffic offenses including driving
while operating privilege is suspended or revoked under [75
Pa.C.S. § 1543(a)].
On or about January 23, 2020[, Appellee’s] counsel[, Joshua S.
Maines], Esq., filed a petition for writ of habeas corpus/motion to
quash criminal information (omnibus motion) on behalf of
[Appellee]. The motion indicated that [Appellee’s] blood was
tested by NMS Labs for drug impaired driving toxicology analysis
with the results being that [Appellee’s] blood contained amounts
of substances relating to the use of marijuana, being THC. It was
also alleged that at the time of the incident [Appellee] was
approved for and possessed a valid license to utilize approved
marijuana substances for medical purposes. [Appellee’s] motion
requested that counts [1 and 2] of the information be dismissed
as marijuana has an accepted medical use in Pennsylvania
pursuant to the Medical Marijuana Act[3] (MMA) and that
Pennsylvania’s Controlled Substance Drug Device and Cosmetic
Act[4] [(CSA)] defined a Schedule I controlled substance as a
substance having no accepted medical use.
It is not contested in this case that [Appellee] had approval for
the use of medical marijuana at the time the traffic stop took place
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3 35 P.S. §§ 10231.101–10231.2110.
4 35 P.S. §§ 780-101–780-144.
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by Trooper Elensky. At the time of the hearing, [Appellee]
presented evidence that consisted of a patient certificate showing
[Appellee] had been diagnosed with post-traumatic stress
disorder, being a serious medical condition under the MMA, and
[he] was authorized as such to use medical marijuana. The
patient certificate indicated different forms of medical marijuana
could be recommended for patient’s use. These included boxes to
check for medical marijuana in the following forms: vaporizer or
nebulizer; topical; liquid; oral; pill; and tincture. None of these
boxes were checked, as it was recommended that the patient
discuss the form of medical marijuana to be dispensed with a
medical professional employed by the dispensary. The [c]ourt
notes that marijuana in its plant form as commonly used illegally
is not a form of medical marijuana. Therefore, if the substance
provided by [Appellee] to the Trooper at the time of the vehicle
stop was plant form of marijuana, it is illegal marijuana and does
not qualify as a form of medical marijuana.[5] In addition, to the
best of this [c]ourt’s knowledge and application of common sense,
use of any of the forms of approved marijuana do not produce the
smell caused by the burning of illegal marijuana.[fn1]
[fn1] This would be an issue of proof at trial.
The [CSA] in 35 P.S. § 780-104 defines a Schedule I controlled
substance as one that has “a high potential for abuse, no currently
accepted medical use in the United States, and a lack of accepted
safety for use under medical supervision.” The Act lists marijuana
as [a] Schedule I controlled substance. Pennsylvania’s MMA
became effective in May, 2016. 35 P.S. § 10231[.2110]. The
MMA provides accepted medical use for marijuana for certain
serious health conditions including post-traumatic stress
syndrome. The MMA provides procedures for patients to apply for
medical marijuana cards from the Pennsylvania Department of
Health. Once a medical marijuana card is obtained, a patient
possessing the card can legally purchase approved medical
marijuana products at designated dispensaries and legally use the
____________________________________________
5 We note that there is no absolute prohibition on plant form or dry-leaf
marijuana under the MMA. Instead, the statute provides that medical
marijuana may be dispensed in “a form medically appropriate for
administration by vaporization or nebulization, excluding dry leaf or plant form
until dry leaf or plant forms become acceptable under regulations adopted
under section 1202[.]” 35 P.S. § 10231.303(b)(2)(iv).
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medical marijuana products. As noted, the medical marijuana
products are limited in terms of consumption and in terms of form.
The MMA provides that patients legally using medical marijuana
shall not be subject to “arrest, prosecution or penalty in any
manner” with respect to offenses under [CSA], 35 P.S. §
10231.2103.
[Appellee’s] omnibus motion asks that counts [1 and 2] of the
information be dismissed, “as marijuana has an accepted medical
use pursuant to the MMA and Pennsylvania’s [CSA] defines a
Schedule I controlled substance as one having no such accepted
medical use.” [Appellee’s] argument is that marijuana can no
longer be listed as a Schedule I [controlled] substance in 35 P.S.
[§] 780-104, and a person who legally uses “medical marijuana
legitimately for chronic conditions, which is an accepted medical
purpose, would be at risk for prosecution” for driving under the
influence “at all times, regardless of level of impairment and the
legitimacy of their use.” Paragraph 22 of omnibus motion. As
such, [Appellee] asks that the DUI charges set forth in counts [1
and 2] be dismissed.
Trial Ct. Op., 5/29/20, at 1-4 (some formatting altered).
On May 29, 2020, the trial court denied Appellee’s omnibus motion, and
the case was scheduled for a jury trial. On the morning of trial, Appellee
submitted proposed jury instructions. One of the proposed points for charge
included a specific instruction that medical marijuana and its metabolites are
not Schedule I controlled substances for purposes of DUI under 75 Pa.C.S. §
3802(d)(1)(i). Specifically, the trial court explained:
[Appellee’s] counsel filed proposed points for charge, which
included a modified version of Pa. SSJI (Crim) 17.3802(d)(1). The
following language (in part) was requested:
EXCEPTION — I hereby instruct you that Medical
Marijuana (also Delta-9 THC) is NOT a Schedule I
controlled substance. Likewise, Delta-9 Carboxy THC and
11-hydroxy Delta-9 THC are also metabolites of Medical
Marijuana. To find [Appellee] guilty of DUI under this
section, the Commonwealth must prove beyond a
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reasonable doubt that [Appellee] had in his blood at the time
he drove Marijuana or a Metabolite of Marijuana and not
Medical Marijuana.
“Medical Marijuana is not listed in the CSA [(Controlled
Substance Act)] as a Schedule I substance, only marijuana
is listed. The MMA [(Medical Marijuana Act)] provides a very
limited and controlled vehicle for the legal use of medical
marijuana by persons qualified under the MMA. Outside the
MMA, marijuana remains a prohibited Schedule I controlled
substance for the general citizenry who are unqualified
under the MMA.” Commonwealth v. Jezzi, 208 A.3d
1105, 1115 (Pa. Super. 2019) [(citations omitted)].
The [c]ourt indicated approval of this proposed charge, as it was
consistent with the [c]ourt’s pre-trial ruling making a distinction
between illegal marijuana and legal marijuana products under the
MMA. The District Attorney took exception to this ruling which the
[c]ourt dismissed. The Commonwealth advised that an immediate
appeal would be taken to the Superior Court. The [c]ourt
disagreed with the Commonwealth’s position but agreed it had the
legal authority to appeal pretrial. The jury was then discharged
and the trial cancelled.
Trial Ct. Op., 9/3/20, at 2 (emphasis in original and some formatting altered).
The Commonwealth filed a timely appeal on August 5, 2020, and a timely
amended notice of appeal on August 6, 2020.6 Both the Commonwealth and
the trial court complied with Pa.R.A.P. 1925.
On appeal, the Commonwealth presents the following issues:
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6 In both its initial notice of appeal and amended notice of appeal, the
Commonwealth certified that the trial court’s order substantially handicapped
or terminated the prosecution. Notice of Appeal, 8/5/20; Am. Notice of
Appeal, 8/6/20. We conclude that this appeal is properly before our Court.
See Commonwealth v. Holston, 211 A.3d 1264, 1268 (Pa. Super. 2019)
(en banc) (stating that, pursuant to Pa.R.A.P. 311(d), the Commonwealth has
the right to appeal an interlocutory order in a criminal case if the
Commonwealth certifies that the order will terminate or substantially handicap
the prosecution).
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1. Did the trial court err when it dismissed the Commonwealth’s
objection to [Appellee’s] proposed jury instruction?
2. Did the trial court err when it held that medical marijuana is
not a Schedule I controlled substance?
a. Does the classification of marijuana as a Schedule I
controlled substance create a positive conflict of law
between the state and federal controlled substances
acts?
3. Can a defendant be found guilty of DUI pursuant to 75 Pa.C.S.
§ 3802(d)(1) if that defendant has any amount of marijuana in
his system after driving a motor vehicle, even if the defendant
has a medical marijuana card?
Commonwealth’s Brief at 7 (some formatting altered).
Proposed Jury Instructions
The Commonwealth’s first two issues are interrelated, and we address
them concurrently. Generally, in an appeal challenging jury instructions
following a conviction and the imposition of sentence, our standard of review
is for an abuse of discretion or an error of law controlling the outcome of the
case. Commonwealth v. Williams, 241 A.3d 1094, 1109 (Pa. Super. 2020).
In such circumstances, a jury charge “will be found adequate unless the issues
are not made clear, the jury was misled by the instructions, or there was an
omission from the charge amounting to a fundamental error.”
Id. (citation
omitted).
However, in the instant case, the Commonwealth appeals a pre-trial
order denying its challenge to proposed jury instructions on the basis that the
trial court’s instruction altered the statutory definition for the elements of the
DUI offense. Because the Commonwealth’s appeal concerns the accuracy of
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the law set forth in the proposed jury instruction, the propriety of those
instructions is a question of law. See, e.g., Commonwealth v. Myers, 621
A.2d 1009, 1013 (Pa. Super. 1993). “As with all questions of law on appeal,
our standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Lee,
260 A.3d 208, 211 (Pa. Super. 2021) (some
formatting altered and citation omitted); see also United States v.
Spillone,
879 F.2d 514, 525 (9th Cir. 1989) (stating that although a reviewing
court considers jury instructions as a whole to evaluate their adequacy, the
issue of “whether a jury instruction misstated elements of a statutory crime is
a question of law and is reviewed de novo” (citations omitted)), cert. denied,
498 U.S. 878,
111 S.Ct. 210 (1990).7
The Commonwealth contends that the trial court erred when it agreed
to instruct the jury that medical marijuana was not a Schedule I controlled
substance for purposes of 75 Pa.C.S. § 3802(d)(1), and that the
Commonwealth was required to prove that Appellee had illegal marijuana in
his bloodstream. Commonwealth’s Brief at 12. In support, the
Commonwealth asserts that all marijuana, both medical and non-medical,
remains a Schedule I controlled substance under the CSA. Id. at 13-15.
Additionally, the Commonwealth points out that the Legislature had ample
opportunity to accommodate medical marijuana use under the DUI statute
____________________________________________
7 Although federal circuit court decisions are not binding on this Court, they
may be considered for their persuasive value. Commonwealth v. Little, 246
A.3d 312, 328 n.18 (Pa. Super. 2021).
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and/or remove marijuana from the list of Schedule I controlled substances,
but it has chosen not to do so. Id. at 14-15.
Appellee responds that the trial court was correct in distinguishing
between medical marijuana and non-medical marijuana. Appellee’s Brief at
12. Appellee contends that medical marijuana is not a Schedule I controlled
substance pursuant to Jezzi. Id. at 13-15. In support, Appellee explains:
If 75 Pa.C.S. § 3802(d)(1) applies to medical marijuana, any
medical marijuana patient is perpetually at risk for DUI at any
time of driving. It is an absurd and untenable position to hold that
the MMA intends for this outcome. On the contrary, common
sense dictates that the MMA intends the opposite, which is
consistent with the ruling in Jezzi and consistent with the
proposed jury instruction in this matter. Jezzi[, 208 A.3d] at
1115. Jezzi nor the proposed instruction prohibits the
Commonwealth from prosecuting a medical marijuana patient for
being impaired by medical marijuana to extent that renders that
patient incapable of safe driving.
Id. at 21. Therefore, Appellee concludes that the Legislature intended to
protect medical marijuana patients from prosecution under 75 Pa.C.S. §
3802(d)(1). Id.
The relevant portion of the DUI statute states as follows:
(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
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Cosmetic Act, which has not been medically prescribed
for the individual; or
(iii) metabolite of a substance under subparagraph (i)
or (ii).
75 Pa.C.S. § 3802(d)(1) (footnote omitted).
The MMA became effective on May 17, 2016, and it provides for the use
of medical marijuana in Pennsylvania. See 35 P.S. §§ 10231.101–
10231.2110. The MMA defines medical marijuana as “[m]arijuana for certified
medical use as set forth in this act.” Id. at § 10231.103. “Notwithstanding
any provision of law to the contrary, use or possession of medical marijuana
as set forth in this act is lawful within this Commonwealth.” 35 P.S. §
10231.303(a). Conversely, the use of medical marijuana beyond the
parameters set forth in the MMA is unlawful. Id. at § 10231.304.
The MMA states that a medical marijuana patient shall not be “subject
to arrest, prosecution or penalty in any manner, or denied any right or
privilege, including civil penalty or disciplinary action by a Commonwealth
licensing board or commission, solely for lawful use of medical marijuana[.]”
Id. at § 10231.2103(a)(1). However, authorized use is not a defense to
violations of 75 Pa.C.S. § 3802(d)(1). See 75 Pa.C.S. § 3810 (stating that
“[t]he fact that a person charged with violating this chapter is or has been
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legally entitled to use alcohol or controlled substances is not a defense to a
charge of violating this chapter”).8
The DUI statute specifically states that an individual may not operate a
motor vehicle if there is a Schedule I controlled substance in that individual’s
blood.9 Further, as referenced in the DUI statute, the list of Schedule I
____________________________________________
8 Compare Ariz. Rev. Stat. § 36-2811(A)(2). See also Dobson v.
McClennen,
361 P.3d 374, 378 (Ariz. 2015) (stating that the Arizona Medical
Marijuana Act (AMMA) provides an affirmative defense to a defendant charged
under statute governing driving while marijuana or its metabolite is in the
body where the defendant can show that he or she was authorized to use
medical marijuana and that the concentration of marijuana or its impairing
metabolite in his body was insufficient to cause impairment); State ex rel.
Montgomery v. Harris,
322 P.3d 160, 161 (Ariz. 2014) (concluding that
although
Ariz. Rev. Stat. § 28-1381(A)(3) makes it unlawful for a driver to be
in actual physical control of a vehicle if there is “any drug defined in [Ariz.
Rev. Stat.] § 13-3401 or its metabolite in the person’s body,” the phrase “its
metabolite” does not include Carboxy-Tetrahydrocannabinol (“Carboxy-THC”),
a non-impairing metabolite of cannabis, a proscribed drug listed in § 13-
3401).
9 We acknowledge the rapidly evolving state of the law regarding both medical
and non-medical marijuana. Indeed, in Pennsylvania, legislation introduced
on October 18, 2021, seeks to amend the DUI statutes, and among other
things, remove marijuana from the list of Schedule I controlled substances in
the CSA. See 2021 PA S.B. 473. Additionally, there have been efforts to
remove marijuana from its Schedule I controlled substance designation at the
federal level. See Sisley v. U.S. Drug Enforcement Administration,
11
F.4th 1029, 1031 (9th Cir. 2021); see also Washington v. Barr,
925 F.3d
109, 113 (2nd Cir. 2019). In Sisley, the Ninth Circuit Court of Appeals
dismissed the matter due to petitioners’ failure to exhaust their administrative
remedies. Sisley, 11 F.4th at 1036. However, in Washington, the Second
Circuit Court of Appeals, while agreeing with the district court that the
plaintiffs should attempt to exhaust their administrative remedies, noted that
it is “troubled by the Drug Enforcement Administration (DEA)’s history of
dilatory proceedings.” Washington,
925 F.3d at 113. The Washington
Court noted that it concurred with the district court’s ruling regarding
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controlled substances are set forth in the CSA, and that list currently includes
marijuana. 35 P.S. § 780-104(1)(iv). Despite the rapidly changing state of
the law in this area, as of the date of this opinion, neither 75 Pa.C.S. §
3802(d)(1) nor 35 P.S. § 780-104(1)(iv) make a distinction between medical
and non-medical marijuana.
In Jezzi, this Court explained that the MMA “create[d] a temporary
program for qualified persons to access medical marijuana, for the safe and
effective delivery of medical marijuana, and for research into the effectiveness
and utility of medical marijuana.” Jezzi, 208 A.3d at 1111 (citing 35 P.S. §§
10231.102(1)-(4), 10231.301).10 However, the Court emphasized that
____________________________________________
exhausting administrative remedies, but it did not dismiss the matter. Id.
The Second Circuit Court continues to hold this matter in abeyance, which to
date remains pending. Id. at 122. Further, we note that even if the
Pennsylvania Legislature enacted legislation to remove the Schedule I
designation from marijuana under state law, such action would not impact the
federal schedule for controlled substances. See
21 U.S.C. § 812(Schedule
I)(c)(10); see also
21 C.F.R. § 1308.11(d)(23), (58). Accordingly, even if
the schedule designation for marijuana under state law is changed, marijuana
would retain its Schedule I designation under federal law unless and until
federal legislation amends the federal controlled substances schedule. The
Supremacy Clause, U.S. CONST., art. VI, cl. 2, establishes that the federal
constitution and federal law generally, has precedence over state law,
including state constitutions.
10 The Jezzi Court described the temporary nature of the MMA as follows:
In essence, the MMA creates a temporary program for qualified
persons to access medical marijuana, for the safe and effective
delivery of medical marijuana, and for research into the
effectiveness and utility of medical marijuana. [35 P.S. §
10231.102(1)-(4)]; 35 P.S. § 10231.301. Significantly, the MMA
does not declare that marijuana is safe and effective for medical
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although “[t]he MMA provides a very limited and controlled vehicle for the
legal use of medical marijuana by persons qualified under the MMA[,]”
marijuana remains to be an illegal substance for possession under the CSA.
Id. at 1115.
This Court has noted that “[t]he MMA anticipates the removal of
marijuana from Schedule I (see 35 P.S. § 10231.2108),[11] but our General
Assembly has not done so.” Commonwealth v. Handley, 213 A.3d 1030,
1037 n.3 (Pa. Super. 2019), abrogated on other grounds by Commonwealth
v. Barr,
240 A.3d 1263, 1279 (Pa. Super. 2020), vacated and remanded by
Commonwealth v. Barr,
266 A.3d 25 (Pa. 2021). To date, the General
Assembly has not enacted legislation amending the MMA, CSA, or the DUI
statutes to remove marijuana from its Schedule I designation under state
law.12
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use; instead, the MMA is a temporary vehicle to access the
substance pending research into its medical efficacy and utility.
35 P.S. § 10231.102(1)-(4).
Jezzi, 208 A.3d at 1111.
11 Section 10231.2108 provides: “Upon amendment of the Controlled
Substances Act (
Public Law 91-513, 84 Stat. 1236) removing marijuana from
Schedule I of the Controlled Substances Act, the department shall publish
notice of the effective date of the amendment in the Pennsylvania Bulletin.”
35 P.S. § 10231.2108 (footnote omitted).
12 Other states have designated medical marijuana as a Schedule II
controlled substance for purposes of state law, while non-medical
marijuana remains classified as a Schedule I controlled substance. See,
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As the Commonwealth notes, a reasonable conclusion to be drawn from
this legislative inaction “is that the legislature intends for all marijuana, both
medical and non-medical to remain a Schedule I controlled substance.”
Commonwealth’s Brief at 15. Upon review, we are constrained to conclude
that at the present time, the Schedule I designation for marijuana, which
includes medical marijuana, remains in place in the Commonwealth of
Pennsylvania pending further legislative action. See Handley, 213 A.3d at
1037; Jezzi, 208 A.3d at 1115; see also 35 P.S. § 780-104(1)(iv).
Although the record indicates that Appellee is a medical marijuana
patient, the relevant DUI statute specifically prohibits driving with the
presence of any amount of a Schedule I controlled substance in the driver’s
blood, regardless of the driver’s status as an authorized user.13 See 75
Pa.C.S. §§ 3802(d)(1)(i), 3810. Additionally, “despite the passage of the
MMA, it still is illegal in Pennsylvania to smoke or vape marijuana while
driving.” Commonwealth v. Grooms, 247 A.3d 31, 40 n.11 (Pa. Super.
____________________________________________
e.g., MCL 333.7212(1)(c), 333.7214(e) (Mich.); R.C. 3796.01(B) (Ohio),
Ohio
Admin. Code 4729:9-1-01(D)(23).
13 As noted, marijuana remains a Schedule I controlled substance at the
federal level. See
21 U.S.C. § 812(b)(1)(B), (Schedule I)(c)(10). In its
second claim of error and as an alternative issue, the Commonwealth asserted
that if this Court concluded that the MMA removed marijuana from
Pennsylvania’s list of Schedule I controlled substances, there would be a
conflict with federal law and the Federal Controlled Substances Act,
21 U.S.C.
§§ 801-971. Commonwealth’s Brief at 16. However, at this juncture, the
MMA has not changed the Schedule I designation for marijuana under
Pennsylvania law, therefore, we need not address the Commonwealth’s claim
of error concerning this issue.
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2021) (citation omitted). If an individual ingests marijuana while driving, it is
immaterial whether the marijuana is medical or non-medical or if that
individual possesses a valid medical marijuana card; driving while smoking or
vaping marijuana remains illegal. See id.
Here, it is unclear if Appellee was vaping or smoking marijuana.
However, it is undisputed that Appellee was driving a motor vehicle at a time
when detectable amounts of marijuana were discovered in his blood stream.
As stated above, neither the DUI statute nor CSA currently distinguish
between medical and non-medical marijuana. Accordingly, the instant jury
instruction requiring the Commonwealth to prove that the marijuana in
Appellee’s blood resulted from non-medical marijuana is a misstatement of
law. Additionally, Appellee’s argument concerning legislative intent is
unavailing in that, currently, marijuana has not been removed from its
Schedule I designation. See Appellees’ Brief at 21 (concluding that the
Legislature intended to protect medical marijuana patients from prosecution
under 75 Pa.C.S. § 3802(d)(1)).
For these reasons, we conclude that the trial court erred by denying the
Commonwealth’s objection to Appellee’s proposed jury instruction.
Liability Under 75 Pa.C.S. § 3802(d)(1)
In its remaining issue, the Commonwealth asks this Court to determine
whether a defendant can be found guilty of DUI pursuant to 75 Pa.C.S. §
3802(d)(1) if that defendant has any amount of marijuana in his system while
driving a motor vehicle, even if that defendant has a medical marijuana card.
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Commonwealth’s Brief at 20-21. The Commonwealth further argues that
Section 3802(d)(1) imposes strict liability for violation of the Motor Vehicle
Code with respect to marijuana. Commonwealth’s Brief at 19-21.
However, the record reflects that the Commonwealth sought an
interlocutory appeal solely based on the trial court’s acceptance of Appellee’s
proposed jury instructions. Notice of Appeal, 8/5/20; Am. Notice of Appeal,
8/6/20; see also Pa.R.A.P. 311(d). Further, the adjudication of Appellee’s
case remains pending and is not before this Court in this interlocutory appeal.
Therefore, we need not address this argument.
Additionally, it is not for this Court to rule on hypothetical legal
questions. Were we to provide guidance in this issue, it would amount to an
impermissible advisory opinion. See Commonwealth v. Koehler, 229 A.3d
915, 940 (Pa. 2020) (reiterating that Pennsylvania courts “do not render
decisions in the abstract or offer purely advisory opinions” (quoting
Pittsburgh Palisades Park, LLC, v. Commonwealth,
888 A.2d 655, 659
(Pa. 2005)); see also Commonwealth v. Enix,
192 A.3d 78, 84 n.5 (Pa.
Super. 2018) (explaining that an advisory opinion is one that is unnecessary
to decide the issue before the court, and this Court is precluded from issuing
such opinions (citation omitted)). As noted, the adjudication of Appellee’s
case is to be determined in the trial court. Therefore, we will not attempt to
prognosticate Appellee’s case prior to his trial, as it would exceed the scope
of our appellate review concerning the question on appeal. See Lee,
260
A.3d at 211 (noting our scope of review).
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Likewise, we do not reach the Commonwealth’s argument that Section
3802(d)(1) imposes strict liability for violations of the Motor Vehicle Code with
respect to marijuana. As we have discussed, the MMA rendered marijuana no
longer per se illegal in the Commonwealth of Pennsylvania. See Barr, 266
A.3d at 40-41. However, Barr did not address the interplay between the MMA
and Pennsylvania’s DUI statutes other than its determination that, to the
extent the MMA conflicts with the CSA, the MMA “shall take precedence.” Id.
at 41 (citation omitted). Notably, the MMA did not strike the CSA Schedule I
designation. As discussed herein, we acknowledge that there is pending
legislation to amend Pennsylvania DUI statutes by removing marijuana from
the list of Schedule I controlled substances. However, at present, the
Schedule I classification does not distinguish between medical and non-
medical marijuana. Therefore, the DUI statute remains applicable to all forms
of marijuana.
Given the newness and temporary programmatic nature of the MMA,14
its interpretation could change such that its juxtaposition with Pennsylvania
DUI statutes may be altered through legislative action or other changes to
federal and state law as well as the appellate disposition of our Supreme Court.
However, at this juncture as an appellate court, we are charged to interpret
the law as it is now, not what we want it to be, or what it might be in the
future. See Commonwealth v. Ruffin, 16 A.3d 537, 543 n.12 (Pa. Super.
____________________________________________
14 See Jezzi,
208 A.3d at 1111; see also 35 P.S. § 10231.303(b)(2)(iv).
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2011). Accordingly, whether Section 3802(d)(1) imposes strict liability for
violations of the Motor Vehicle Code for medical marijuana remains an issue
that the trial court must determine based on current Pennsylvania law and the
facts of this case.
Conclusion
In sum, marijuana15 remains a Schedule I controlled substance under
current Pennsylvania law and, therefore, the Commonwealth is not required
to prove that the marijuana in an individual’s bloodstream is non-medical
marijuana for purposes of proving DUI. For these reasons, we conclude that
the trial court committed an error of law when it denied the Commonwealth’s
challenge to Appellee’s proposed jury instruction. Accordingly, we reverse the
order denying the Commonwealth’s challenge to Appellee’s proposed jury
instructions and remand this matter for further proceedings.
Order reversed. Case remanded for trial consistent with this opinion.
Jurisdiction relinquished.
____________________________________________
15 In its amicus curiae brief, the Pennsylvania Association of Criminal Defense
Lawyers (PACDL) argues, among other things, that medical marijuana is not
a Schedule I controlled substance in Pennsylvania. PACDL Amicus Curiae Brief
at 4. As discussed, we disagree based on the current status of Pennsylvania
and federal law.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/12/2022
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