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2024 PA Super 153
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL DAVID SMITH :
:
Appellant : No. 593 MDA 2023
Appeal from the Judgment of Sentence Entered December 7, 2022
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0007244-2019
BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E.*
DISSENTING OPINION BY LAZARUS, J.: FILED JULY 23, 2024
I respectfully dissent. In my view, 75 Pa.C.S.A. §§ 3802(d)(1)(i) and
(iii) are unconstitutional because the two subsections (1) violate the
constitutional right to equal protection and (2) create an irrebuttable
presumption in violation of the right to procedural due process. As such, I
dissent from the Majority’s conclusion that 75 Pa.C.S.A. §§ 3802(d)(1)(i) and
(iii) pass constitutional muster.
First, I respectfully disagree with the Majority’s analysis of Smith’s equal
protection argument. Specifically, I would hold that, in light of the
uncontroverted expert testimony adduced at trial, like persons (with the same
qualifying conditions, prescribed chemically identical medications, which cause
similar effects) are treated dissimilarly (based on the schedule classification
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* Former Justice specially assigned to the Superior Court.
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of the prescribed medication), and there is no fair reason for establishing this
classification for differentiation of treatment on that basis when considering
the object of the DUI statute (road safety). Accordingly, I would find that
both Smith’s facial and as-applied equal protection challenges to the DUI
statute have merit.
Smith argues that the DUI statute violates equal protection principles
where it treats similarly situated individuals differently, based on the
classification schedule of the individual’s prescribed medication—specifically,
prescription medical marijuana is a Schedule I drug and prescription Marinol1
is a Schedule III medication. Smith reasons that the DUI statute is
unconstitutional because medical marijuana patients are guilty of a DUI if they
drive with any amount of active or inactive metabolites in their blood, see 75
Pa.C.S.A. §§ 3802(d)(1)(i), (iii), whereas the Commonwealth must specifically
prove Marinol patients are incapable of safely driving, despite any amount of
detectable active metabolites in their blood. See id. at § 3802(d)(2). There
is no similar requirement of proof for medical marijuana patients—i.e., a
requirement that the Commonwealth show that medical marijuana patients
are incapable of safe driving—even if there is only one detectable inactive
metabolite in that patient’s blood. See id. at §§ 3802(d)(1)(i), (iii).
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1 I note that Marinol is a brand name that Smith’s experts used in their expert
opinion testimony, summarized infra. The generic name is dronabinol. See
www.webmd.com/drugs/2/drug-9308/marinol-oral/details (last visited
05/23/24).
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Smith points to the uncontested expert testimony adduced at trial,
which establishes that medical marijuana and Marinol patients have the same
symptoms,2 that medical marijuana and Marinol are the same chemical
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2 David Gordon, M.D., an expert qualified in addiction medicine and medical
marijuana, testified on direct examination as follows:
Q. [] What is the active ingredient in marijuana which treats these
conditions which has the beneficial effect?
A. It’s the Delta-9 tetrahydrocannabinol [(THC)]. That is the
active ingredient. []
…
Q. And have you prescribed Marinol with its THC to patients?
A. I have. . . . I still prescribe it in my practice. Surprisingly,
there are instances where that drug works better than even the
medical cannabis or is better tolerated. We could get into
specifics, but it’s still a drug that I am actively—or I’m still
prescribing.
Q. And Marinol, I believe, is a schedule III drug, correct?
A. It is.
Q. Why doesn’t everyone just use Marinol then instead of
medical marijuana if they both have the same THC?
A. Well, they could. Again, it’s very costly. The pharmaceutical
industry has cornered this particular market. . . . Anybody that
would have a similar qualifying condition has access, but,
again, it’s very costly for a week or a month’s supply. . . . [Y]ou
want to talk about what I consider one of the greatest scientific
feats known to mankind that no one knows about is that the THC
in the Marinol is indistinguishable from the THC in the
plant. Now, we call it synthetic because it’s generated in a
laboratory, but I’ve never known a situation where [] a drug[]
could[, in a] Petri dish[, be] create[d—]the same biologic
(Footnote Continued Next Page)
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medication, which provide the same effects for patients,3 and patients of
either medication are capable of safely driving with non-zero levels of active
metabolites of either medical marijuana or Marinol in their blood.4 See N.T.
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configuration or biochemical configuration, if you will[—] and
that’s what Marinol is. []
N.T. Jury Trial, 7/13/22, at 23-27 (emphasis added).
3 Jolene Bierly, M.D., an expert qualified in forensic toxicology, testified on
cross examination as follows:
Q. [] [T]he Delta-9 THC is also the active component of the
prescription medication Marinol, correct?
A. That’s correct.
Q. And Marinol, that’s not marijuana. It’s something different,
right?
A. It’s prescription marijuana.
…
Q. [] [T]he THC that’s in Marinol would have the same effect
as the THC in marijuana, right?
A. It would be Delta-9 THC in the blood, so it would have
the same effects because it is Delta-9 THC in the blood.
Q. And [they are] the same potential symptoms [for
Marinol, as they are] for just regular marijuana, correct?
A. That’s correct.
N.T. Jury Trial, 7/12/22, at 124-26 (emphasis added).
4 Lawrence Guzzardi, M.D., an expert qualified in medical toxicology, general
medicine, and emergency medicine, testified on direct examination as follows:
Q. [] And so, in fact, those studies that are generally accepted
show a lack of correlation between THC levels [and] impairment
(Footnote Continued Next Page)
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because you have to account for things such as tolerance and
usage and all of those factors and age, correct?
A. Correct.
Q. And regardless of whether the THC—and I know in terms of
your career and experience you’ve treated patients for various
things and you’re familiar with other medications that have THC
in them[—w]ould the THC, because it’s in marijuana, is that
something special that the effect of THC in marijuana would be
greater than the THC in another drug that could be prescribed?
A. No. So[,] for cancer patients, there is—before medical
marijuana came, it was widely used, and, also, for individuals who
were going to be driving, we can prescribe a medicine called
Marinol, and Marinol basically contains Delta-9 THC, the same
thing they’re smoking. And that’s not a Class 1 drug. That’s a
Class 3 drug, which means any doctor can prescribe it. Class 1,
no doctor can prescribe it. Class 2, you need a special license.
Class 3, any doctor licensed can prescribe it. So[,] Marinol—
so[,] if I wanted to get to the same level of Delta-9 THC in
you as in Mr. Smith, if I prescribe Marinol to you and you
had a Delta-9 THC level of 10, you could safely drive in the
Commonwealth of Pennsylvania and legally drive. An
individual who has medical marijuana has the same level, but
because it was prescribed in a different form, it[] per se could be
considered by Pennsylvania law as somebody who’s unfit to drive
a motor vehicle. The same medication, the same level, the
same drug. Marinol is, quote, legal. Medical marijuana
currently is not legal.
Q. So[,] the bottom line is, and that’s not the case here, but if
Mr. Smith had used Marinol and got these blood results, you
would look for the same signs or symptoms of impairment
or incapable of safe driving like in the video to see if he was
impaired by the Marinol as you would for the medical marijuana?
A. Correct. And we would look at the level in his blood and
say, 10 nanograms, well, you can’t use that. Studies have
shown that that level doesn’t tell you anything about
impairment to drive a motor vehicle. And so you have to say,
well, let’s look at him. Let’s look at his driving. Let’s look at how
(Footnote Continued Next Page)
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Jury Trial, 7/13/22, at 23-27; N.T. Jury Trial, 7/12/22, at 124-26; N.T. Jury
Trial, 7/12/22-7/13/22, at 100-03. Smith reasons that this uncontroverted
expert testimony requires that we find the DUI statute violates his equal
protection rights. I agree.
As a threshold issue, the Majority is correct that strict scrutiny does not
apply to Smith’s constitutional challenges. See Commonwealth v.
Shawver, 18 A.3d 1190, 1194-95 (Pa. Super. 2011) (courts generally apply
rational basis analysis to equal protection challenges to criminal statutes
creating different categories among criminal offenders, and classifications
created under DUI statute historically do not implicate fundamental rights or
suspect or sensitive classes). Nevertheless, I agree with Smith that the DUI
statute violates his equal protection rights, facially and as-applied, under a
rational basis analysis.
Indeed, Smith established at trial that medical marijuana and Marinol
patients have the same symptoms, that medical marijuana and Marinol are
____________________________________________
he did. And then if you saw that he had taken Marinol and that
he was driving in an S pattern or following too closely, those are
signs of potential impairment by marijuana, and then somebody
would have to make a determination whether he was impaired or
not, like today’s hearing.
Q. And then for [] Marinol, when that metabolized into
active or inactive metabolites, are they the same as on this
lab report for the medical marijuana?
A. Yes.
N.T. Jury Trial, 7/12/22 and 7/13/22, at 100-03 (emphasis added).
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chemically indistinct, both provide the same effects for patients, metabolize
the same way, and patients of either medication are capable of safely driving
with non-zero levels of metabolites in their blood.5 As such, like persons are
treated dissimilarly under the DUI statute, based merely on the schedule of
the prescribed medication, which classification fails to bear any reasonable
relation to the object of the DUI legislation, road safety. See
Commonwealth v. Bonadio, 415 A.2d 47, 51-52 (Pa. 1980) (finding
violation of equal protection under rational basis scrutiny where moral
legislative classification bears no relation to object of legislation). Under these
circumstances, considering the uncontroverted expert testimony evidencing
the lack of differences between prescription medical marijuana and
prescription Marinol, and the similar effects of those prescribed medications
on patients, there is no justification for the classification of schedules in the
DUI statute leading to such disparate treatment, and I would find there is no
reasonable or fair and substantial connection between that classification and
the object of the legislation. Further, in light of the above-mentioned
uncontested expert testimony adduced at Smith’s trial, even if, arguendo, not
a successful facial challenge, Smith’s as-applied constitutional challenge to the
DUI statute merits relief.
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5 This Court has noted on prior occasions that marijuana is a fat-soluble drug
that can stay metabolized in the blood months after its consumption. See
Commonwealth v. Williamson,
962 A.2d 1200, 1205 (Pa. Super. 2008)
(citing Commonwealth v. Etchison,
916 A.2d 1169 (Pa. Super. 2007)).
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Also, contrary to the Majority’s conclusion, I would find our decision in
Commonwealth v. Dabney, 274 A.3d 1283 (Pa. Super. 2022), inapposite
because it only addressed the question of whether medical marijuana was a
Schedule I substance.
Id. at 1291-92. Smith does not raise this same
challenge. Indeed, Dabney’s holding need not be disturbed to address
Smith’s equal protection argument, especially where Smith’s claim necessarily
is founded on the fact that prescription medical marijuana is classified as a
Schedule I substance.
Similarly, the Commonwealth’s reliance on our decisions in
Commonwealth v. Jezzi, 208 A.3d 1105 (Pa. Super. 2019), and
Commonwealth v. Waddell,
61 A.3d 196 (Pa. Super. 2012), fare no better
where those appellants similarly challenged marijuana’s classification as a
Schedule I substance. Jezzi,
208 A.3d at 1109; Waddell,
61 A.3d at 201-
02. Here, again, Smith does not challenge that medical marijuana is a
Schedule I substance. Further, contrary to the Commonwealth’s claims, it is
of no moment when either the Medical Marijuana Act (MMA)6 or Controlled
Substance, Drug, Device, and Cosmetic Act (CSA)7 was enacted, as this
analysis does not rely on intervening law or changes in precedent. Indeed,
this Court need not examine whether the MMA superseded the CSA to address
Smith’s equal protection claims relating to the DUI statute at issue here.
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6 35 P.S. §§ 10231.101-10231.2110.
7 35 P.S. §§ 780.101-780.144.
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Next, contrary to the Commonwealth’s argument, our prior holding in
Etchison, supra, is inapposite. Although our Etchison decision addressed
an equal protection challenge, the appellant failed to identify any legislative
classification in his appeal because he only argued, baldly, that the DUI
statute fails rational basis scrutiny since it allows for the prosecution of a non-
impaired driver.
Id. at 1173. Conversely, here, Smith has specifically
identified the legislative classification he seeks to challenge within the DUI
statute—treatment of Schedule I medical marijuana patients, see 75
Pa.C.S.A. §§ 3802(d)(1)(i), (iii), as compared with treatment of Schedule III
Marinol patients. See id. at § 3802(d)(2).
For the above reasons, I respectfully dissent regarding the Majority’s
analysis of Smith’s equal protection claims.
I also respectfully disagree with the Majority’s analysis of Smith’s
irrebuttable presumption argument. In particular, I would hold that sections
3802(d)(1)(i) and (iii) create unconstitutional irrebuttable presumptions of
impairment. Additionally, I would find that such an irrebuttable presumption
further deprives lawful prescription medical marijuana patients of a
meaningful hearing at which they may present evidence to retain their driver’s
license.
Preliminarily, I agree with the Majority that driving is not a fundamental
constitutional right, but a privilege. See Majority, ---DATE---, at 12 (citing
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Commonwealth v. Frederick, 237 A.3d 1038 (Pa. Super. 2020));8 see also
Commonwealth v. Bell,
167 A.3d 744, 747 (Pa. Super. 2017). However,
privileges may still be unconstitutionally infringed upon by government action.
See Com. Dept. of Transp. Bureau of Driver Licensing v. Clayton,
684
A.2d 1060, 1060-61 (Pa. 1996) (law providing for suspension of licensee’s
operating privilege based upon epileptic seizures, without giving licensee
opportunity to present medical evidence to establish his or her competency to
drive, created irrebuttable presumption in violation of due process).
Smith argues that sections 3802(d)(1)(i) and (iii) violate his procedural
due process rights because they create irrebuttable presumptions of guilt for
patients who use prescribed medical marijuana lawfully. Smith contends that
the irrebuttable presumption is that patients lawfully taking prescribed
medical marijuana are unable to drive safely when they have any amount of
marijuana metabolite, active or inactive, in their blood. Smith asserts that
the statute requires no evidence of impairment in order to sustain a conviction.
Smith points out that sections 3802(d)(1)(i) and (iii) are in contrast to the
DUI statute subsection 3802(d)(2), which is applicable to patients taking
prescribed Schedule II/III drugs, which requires the Commonwealth to prove
impairment beyond mere presence of the drug in a patient’s blood.
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8 I note that Frederick is an unpublished decision from this Court, but may,
nevertheless, be cited for its persuasive value. See Pa.R.A.P. 126(b)
(unpublished non-precedential decisions of Superior Court filed after May 1,
2019, may be cited for persuasive value).
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Smith further argues, as happened here, that expert testimony
regarding the impact of marijuana metabolites on a medical marijuana
patient’s ability to drive should be relevant in refuting a DUI conviction. But,
under sections 3802(d)(1)(i) and (iii), an irrebuttable presumption exists
where a lawful prescription medical marijuana patient is entirely unable to
refute the statute because they will have metabolites in their blood for
months, even after ceasing use of medical marijuana. Smith argues that this
presumption is not universally true and reasonable alternative means of
ascertaining the presumed fact are available. I agree.
The irrebuttable presumption doctrine has its roots in a 1970’s line of
United States Supreme Court decisions. See Bell v. Burson, 402 U.S. 535
(1971) (striking down Georgia statute permitting state to revoke driver’s
license following accident without a fault hearing where driver failed to post
security); Stanley v. Illinois,
405 U.S. 645 (1972) (striking down Illinois
statute which conclusively presumed all unmarried fathers to be unfit
parents); Vlandis v. Kline,
412 U.S. 441 (1973) (striking down Connecticut
statute which conclusively fixed student’s residence status at time of
application for school admission); Cleveland Board of Education v.
LaFleur,
414 U.S. 632 (1974) (striking school regulations which required
pregnant teachers to take leave without pay beginning five months before
expected birth of child). Each of these cases created an irrebuttable
presumption as a means of achieving an end result found desirable by the
legislature. See Clayton,
684 A.2d at 1063. Additionally, in each case, the
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Court struck down the statute involved “on the basis that the presumptions
created were not universally true and did not grant an individual an
opportunity to rebut the presumption.” See id.
In Bell, the United States Supreme Court stated:
Once licenses are issued, as in petitioner’s case, their continued
possession may become essential in the pursuit of livelihood.
Suspension of issued licenses thus involves state action
that adjudicates important interests of licensees. In such
cases the licenses are not to be taken away without that
procedural due process required by the Fourteenth Amendment.
This is but an application of the general proposition that relevant
constitutional restraints limit state power to terminate an
entitlement whether that entitlement is denominated a “right” or
a “privilege.”
Bell, 402 U.S. at 539 (emphasis added, citations omitted).
Our Supreme Court has previously stated that “[w]hile procedural due
process is a flexible notion which calls for such protections as demanded by
the individual situation, the essential requisites are notice and meaningful
opportunity to be heard.” Clayton, 684 A.2d at 1064 (emphasis added)
(citing Soja v. Pennsylvania State Police,
455 A.2d 613, 615 (Pa. 1982)
(“the essential elements of due process are notice and opportunity to be heard
and to defend in an orderly proceeding adapted to the nature of the case
before a tribunal having jurisdiction of the cause”)). Further, due process
requires not just any hearing, but rather an appropriate hearing. See Fiore
v. Bd. of Fin. and Revenue,
633 A.2d 1111, 1114 (Pa. 1993).
The United States Supreme Court in Bell provided the following
guidance:
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The hearing required by the Due Process Clause must be
“meaningful” and “appropriate to the nature of the case.” It is a
proposition[,] which hardly seems to need explication[,] that a
hearing which excludes consideration of an element essential to
the decision whether licenses of the nature here involved shall be
suspended does not meet this standard.
Bell, 402 U.S. at 541-42 (citations omitted).
Any DUI conviction, including convictions under sections 3802(d)(1)(i)
and (iii), automatically suspends the defendant’s driver’s license.9 See 75
Pa.C.S.A. § 3804 (pertaining to penalties). Section 3804 provides, in relevant
part, that “[t]he department shall suspend the operating privilege of an
individual under paragraph (2) upon receiving a certified record of the
individual’s conviction of or an adjudication of delinquency for: (i) an offense
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9 The Majority concludes that Smith’s claim is without merit because sections
3802(d)(1)(i) and (iii) are strict liability offenses. See Majority, ---DATE---,
at 26 (citing Commonwealth v. Jones, 121 A.3d 524, 529 (Pa. Super. 2015)
(“[T]he Vehicle Code precludes an individual from operating a motor vehicle
with any amount of scheduled controlled substance, or a metabolite thereof,
in the driver’s blood.”) (emphasis in original)). In my view, this has little to
no bearing on the outcome of Smith’s irrebuttable presumption argument.
Smith argues that the irrebuttable presumption is one of impairment, not
intent. I agree and, consequently, it is of no moment whether sections
3802(d)(1)(i) and (iii) have mens rea requirements. Indeed, I note that DUI—
General Impairment, which Smith was acquitted of, is also a strict liability
offense because it has no mens rea requirements. See 75 Pa.C.S.A. §
3802(a)(1); see also Commonwealth v. Segida,
985 A.2d 871, 879 (Pa.
2009) (discussing section 3802(a)(1) elements).
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under section 3802[.]” Id. at § 3804(e)(1) (pertaining to suspension of
operation privileges upon conviction) (emphasis added).10
In my view, the instant case presents an irrebuttable presumption that
Smith, a lawful medical marijuana patient under the MMA, was driving
impaired and now faces an automatic and unassailable license suspension.
See Clayton, supra; 75 Pa.C.S.A. § 3804(e)(1). Indeed, as the Majority
notes, Smith was acquitted of DUI—General Impairment. See Majority, ---
DATE--- at 4-5. In fact, Smith’s only convictions were to sections
3802(d)(1)(i) and (iii) due to the presence of marijuana metabolites in his
blood. See id. at 1, 5-6.
Smith had no meaningful hearing or method by which he could refute
the presumption that he was impaired by the marijuana metabolites. Indeed,
as I summarized supra, Smith presented extensive uncontested expert
testimony about marijuana, its metabolites, and the effects they have on the
human body. Nevertheless, in the face of sections 3802(d)(1)(i) and (iii)’s
irrebuttable presumptions, that uncontroverted expert testimony was
meaningless. Based upon the evidence accepted by the jury, Smith was found
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10 Moreover, once an individual’s driver’s license has been suspended related
to a DUI, any subsequent offenses are subject to the recently-questioned 75
Pa.C.S.A. § 1543(b) (pertaining to operating vehicle while license is DUIsuspended). See Commonwealth v. Eid, 249 A.3d 1030, 1044 (Pa. 2021)
(holding section 1543(b)(1)(i) unconstitutionally vague); Commonwealth v.
Jackson,
271 A.3d 1286, 1288 (Pa. Super. 2022) (holding section
1543(b)(1)(ii) unconstitutionally vague). Thus, police, armed with the
knowledge that an individual with a valid medical marijuana prescription can
no longer operate a vehicle due to metabolites in their blood, could initiate
pretextual stops on this basis.
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not to be impaired and yet was still required by law to be found guilty of
DUI.
Moreover, as a direct result of those convictions, Smith’s driver’s license
was automatically suspended under section 3804. See 75 Pa.C.S.A. §
3804(e)(1). Again, there was no hearing at which Smith could refute the
presumption in an attempt to retain his license. In essence, the Majority’s
holding today makes it impossible for lawful prescription medical marijuana
patients to drive without violating the DUI law and, consequently, having their
properly obtained driver’s license suspended. As I detailed supra, the expert
testimony in this case reveals that marijuana metabolites can remain in an
individual’s bloodstream for months after use. See also Williamson, 962
A.2d at 1205. There is no method, under the current statutory scheme, for
lawful medical marijuana patients to operate a vehicle, as they are licensed to
do, without losing that very license. See Clayton,
684 A.2d at 1065 (“Clearly,
precluding unsafe drivers, even those who are potentially unsafe drivers, from
driving on our highways is an important interest. But, it is not an interest
which outweighs a person’s interest in retaining his or her license so
as to justify the recall of that license without first affording the
licensee the process to which he is due.”) (emphasis added). Therefore,
under our Supreme Court’s holding in Clayton, I would conclude that sections
3802(d)(1)(i) and (iii) create irrebuttable presumptions and would find both
sections unconstitutional.
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In summary, under the backdrop of the foregoing caselaw and the fact
that the MMA has legalized prescription medical marijuana for at least some
individuals, I cannot conclude that sections 3802(d)(1)(i) and (iii) are
constitutional. First, sections 3802(d)(1)(i) and (iii) violate the constitutional
rights to equal protection where prescription medical marijuana patients are
not afforded the same protections as prescription Marinol patients. Second,
sections 3802(d)(1)(i) and (iii) create unconstitutional irrebuttable
presumptions due to a lawful prescription medical marijuana patient’s
complete inability to challenge the presumption of impairment and/or
participate in a meaningful hearing to retain their driver’s license.
Accordingly, I would find sections 3802(d)(1)(i) and (iii)
unconstitutional, reverse and vacate Smith’s convictions, and discharge him.
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