The opinion
J-A27039-23
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.*
OPINION BY STEVENS, P.J.E.: FILED JULY 23, 2024
Appellant, Michael David Smith, appeals from the judgment of sentence
entered in the Court of Common Pleas of York County after a jury convicted
him of, inter alia, driving under the influence (“DUI”) in violation of 75
Pa.C.S.A. § 3802(d)(1)(i) and (iii). We affirm.
The undisputed facts are as follows: On the night of June 23, 2019,
Pennsylvania State Police Troopers Ryan Wildermuth and Rebecca Taylor were
on duty and riding in a marked patrol car when they entered Interstate 83
northbound and observed Appellant driving a dark colored SUV traveling north
at a high rate of speed in the left lane. N.T., 7/11/22, at 12-18. Prior to
executing a traffic stop, the troopers pursued the vehicle for over three tenths
of a mile, during which they observed speeds of over 80 miles per hour in a
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A27039-23
50 mile per hour zone and “choppy” handling of the vehicle around curves.
N.T. at 19-21.
During Trooper Wildermuth’s encounter with Appellant, he detected a
strong odor of burnt marijuana emanating from inside the vehicle and viewed
Appellant’s heavy, glassy, bloodshot eyes.” N.T. at 22. From the trooper’s
lawful vantage point outside the vehicle, he saw positioned on the center
console, in plain view, a corn cob pipe and a small marijuana bud in the cup
holder. N.T. at 28. Appellant produced a Medical Marijuana1 card and admitted
that he had smoked marijuana approximately 40 to 50 minutes earlier in
Baltimore, Maryland. N.T. at 28. A medical marijuana container and THC2
wax were also in the vehicle. 3 N.T. at 38. Appellant was placed under arrest
on suspicion of Driving under the Influence (“DUI”) and, after consenting to
blood chemical testing, was taken to York Hospital where a blood sample
____________________________________________
1 Appellant possessed the card in accordance with The Medical Marijuana Act,
35 P.S. § 10231.101 et seq.
2THC is the abbreviation for Tetrahydrocannabinol, an active ingredient in
marijuana.
3 During trial, the Commonwealth indicated that it was prosecuting the DUI
charge without making the distinction of whether Appellant’s consumption of
marijuana was lawful or unlawful under the MMA. Instead, the prosecution
was based strictly on the laboratory results of Appellant’s post-arrest blood
draw, which confirmed the presence of Delta-9-THC marijuana metabolites in
his blood at the time of driving. In so doing, the prosecution’s approach
aligned with our jurisprudence that for purposes of the Section 3802(d)(1)(i)
and (iii) of the DUI statutory scheme, it is irrelevant whether the source of the
metabolites is lawfully consumed medical marijuana or unlawfully consumed
marijuana. See Commonwealth v. Stone, 273 A.3d 1163, 1172-74 (Pa.
Super. 2022).
-2-
J-A27039-23
produced results indicating the presence of active marijuana metabolites in
his blood. N.T. at 48.
A criminal complaint was filed charging Appellant with Driving under the
Influence (“DUI”) of a Schedule I4 controlled substance, marijuana, in violation
of Section 3802(d)(1)(i) and (iii) of the DUI statute.5 Appellant filed omnibus
____________________________________________
4 The CSA describes five schedules of controlled substances. 35 P.S. § 780-
104. In outlining the Schedule I substances, the Act states:
§ 780-104. Schedules of controlled substances
(1) Schedule I—In determining that a substance comes within
this schedule, the secretary shall find: 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
following controlled substances are included in this schedule:
***
(iv) Marihuana.
35 P.S. § 780-104(1)(iv) (effective June 14, 1972).
5 Section 3802(d)(1)(i), (ii), and (iii) provide:
(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),1 known as The Controlled
Substance, Drug, Device and Cosmetic Act;
(Footnote Continued Next Page)
-3-
J-A27039-23
pretrial motions in which he raised constitutional challenges asserting that
Sections 3802(d)(1)(i) and (iii) violate equal protection rights and due process
rights provided to Appellant and other medical marijuana patients by the
Pennsylvania Constitution. The trial court denied the motions.
At Appellant’s trial, toxicologists and a physician provided expert
testimony that marijuana and its metabolites travel from the blood to fat cells
located primarily in the brain and the abdomen and can be released weeks
later back into the blood stream, resulting in detectable levels of both active
and inactive THC metabolites. N.T., 7/12/22, at 29, 73. Active metabolites
bind to receptors and elicit an effect on the user, while an inactive metabolite
has no effect. N.T. at 29; Report of Lawrence J. Guzzardi, M.D., 5/12/22, at
8-9. Medical Marijuana Act (“MMA”) patients who regularly use marijuana in
accordance with the MMA, moreover, will frequently have metabolites in their
blood. N.T. at 73. The experts also agreed that, unlike with alcohol, there is
no way to gauge accurately the impairment of a marijuana user by reference
to a particular blood concentration level of THC or its metabolite. N.T. at 81-
82, 98-99.
____________________________________________
(ii) Schedule II or Schedule III controlled substance, as
defined in The Controlled Substance, Drug, Device and
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.A. § 3802(d)(1)(i)-(iii).
-4-
J-A27039-23
At the conclusion of trial, the jury found Appellant not guilty of DUI while
impaired by a controlled substance (marijuana), 75 Pa.C.S.A. § 3802(d)(2),
and not guilty of Driving on Roadways Laned for Traffic, 75 Pa.C.S. § 3309,
but guilty of speeding and guilty of DUI related to marijuana and/or
metabolites of marijuana being in his blood at the time of driving pursuant to
Section 3802(d)(1)(i) and (iii). On December 7, 2022, Appellant was
sentenced to two concurrent sentences each consisting of three years’
restrictive probation, beginning with 90 days’ house arrest with electronic
monitoring, and a mandatory $1,500 fine. After the denial of post-sentence
motions, Appellant filed the timely present appeal.
Appellant has briefed the following “Statement of the Questions
Presented for Review”:
1. Whether the Lower Court committed an error of law and/or
abused its discretion when it denied Appellant’s Motions to find
that Sections 3802(d)(1)(i) and (iii) of the DUI statute are in
violation of the equal protection and due process
guarantees/rights provided to Appellant and other medical
marijuana patient users under the Pennsylvania Constitution,
since those Sections of the DUI statute;
a) Violate equal protection rights by creating a classification
based upon whether a person using a medication is either
using a Schedule II/III prescribed/approved controlled
substance or using medical marijuana, without a sufficient
constitutional basis to justify that disparate
treatment/classification which infringes upon and adversely
affects fundamental constitutional rights
(security/protection of one’s reputation, an ability to enjoy
life, and an ability to pursue happiness) expressly protected
in the Pennsylvania Constitution;
-5-
J-A27039-23
b) Violate substantive due process rights and overbreadth
protections because their criminalization of the presence of
any amount of marijuana or any amount of its metabolites
(active or inactive) in an individual’s blood, without
requiring proof of any impairment to drive (as is required
with other approved medications), is arbitrary and
capricious, uses unnecessarily broad means which punish
lawful behavior and a mere status, results in unjust
disparate treatment of patients approved to use medical
marijuana to treat their medical conditions, bears little to no
relation to keeping unsafe drivers off the roads by removing
impaired drivers, and infringes upon and adversely affects
fundamental constitutional rights (security /protection of
one’s reputation, an ability to enjoy life, and an ability to
pursue happiness) expressly protected in the Pennsylvania
Constitution; and,
c) Violate procedural due process rights by creating an
irrebuttable presumption that patients approved to sue
medical marijuana (unlike any other patient using
prescribed/approved medications) are unable to drive safely
and are guilty of a DUI offense simply based upon their
having any amount of marijuana or its active or inactive
metabolites in their blood, without any proof of being
impaired to such a degree that they would be unsafe to
drive, which infringes upon and adversely affects
fundamental constitutional rights (security/protection of
one’s reputation, an ability to enjoy life, and an ability to
pursue happiness) expressly protected in the Pennsylvania
Constitution?
Brief of Appellant at 5.
Appellant's constitutional challenge is a question of law for which our
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020). “When addressing
constitutional challenges to legislative enactments, we recognize that ‘the
General Assembly may enact laws which impinge on constitutional rights to
protect the health, safety, and welfare of society,’ but also that ‘any restriction
-6-
J-A27039-23
is subject to judicial review to protect the constitutional rights of all citizens.’”
Commonwealth v. Muhammad, 241 A.3d 1149, 1154–55 (Pa. 2020)
(quoting In re J.B., 630 Pa. 408, 107 A.3d 1, 14 (2014)). Furthermore,
It is axiomatic that: “[A]ny party challenging the
constitutionality of a statute must meet a heavy
burden, for we presume legislation to be constitutional
absent a demonstration that the statute ‘clearly,
palpably, and plainly’ violates the Constitution.”
Konidaris v. Portnoff Law Associates, Ltd., ... 598
Pa. 55, 953 A.2d 1231, 1239 ([Pa.] 2008) (citation
omitted). The presumption that legislative
enactments are constitutional is strong.
Commonwealth v. McMullen, ... 599 Pa. 435, 961
A.2d 842, 846 ([Pa.] 2008); see also 1 Pa.C.S. §
1922(3) ([stating that,] in ascertaining intent of
General Assembly in enactment of statute,
presumption exists that General Assembly did not
intend to violate federal and state constitutions). All
doubts are to be resolved in favor of finding that the
legislative enactment passes constitutional muster.
Pennsylvanians Against Gambling Expansion
Fund, Inc. v. Commonwealth, ... 583 Pa. 275, 877
A.2d 383, 393 ([Pa.] 2005). Moreover, “statutes are
to be construed whenever possible to uphold their
constitutionality.” In re William L., ... 477 Pa. 322,
383 A.2d 1228, 1231 ([Pa.] 1978).
DePaul v. Commonwealth, ... 600 Pa. 573, 969 A.2d 536, 545–
46 ([Pa.] 2009).
Commonwealth v. Arnold, 284 A.3d 1262, 1270 (Pa. Super. 2022)
There are two types of constitutional challenges, facial and
as-applied. Commonwealth v. Brown, 26 A.3d 485, 493 (Pa.
Super. 2011). A facial attack tests a law's constitutionality based
on its text alone without considering the facts or circumstances of
a particular case. Id. The court does not look beyond the
statute's explicit requirements or speculate about hypothetical or
imaginary cases. Germantown Cab Company v. Philadelphia
Parking Authority, 651 Pa. 604, 206 A.3d 1030, 1041 (2019).
-7-
J-A27039-23
An as-applied attack on a statute is more limited. It does not
contend that a law is unconstitutional as written, but that its
application to a particular person under particular circumstances
deprives that person of a constitutional right. Brown, 26 A.3d at
493. “[W]hile as-applied challenges require application of the
ordinance to be ripe, facial challenges are different, and ripe upon
mere enactment of the ordinance.” Philadelphia Entertainment
& Development Partners v. City of Philadelphia, 594 Pa. 468,
937 A.2d 385, 392 n. 7 (2007). It is permissible to raise both
facial and as-applied challenges to a statute. Id. (addressing both
facial and as-applied challenges to tax ordinance).
Muhammad, 241 A.3d at 1154–55.
Appellant contends Section 3802(d)(1)(i) and (iii)’s proscription against
driving with “any amount” of a Schedule I substance or its metabolites in one’s
blood, regardless of evidence of impairment, unlawfully infringes on medical
marijuana patients’ ability to drive and the fundamental state constitutional
rights of enjoying life and pursuing happiness they derive from driving. Also
alleged is the inability of MMA patients to be secure in their reputations under
a DUI statutory scheme that criminalizes unimpaired driving if the driver’s
blood contains any amount of marijuana or a marijuana metabolite. See Brief
of Appellant at 23, citing Nixon v. Commonwealth, Dep’t of Public
Welfare, 839 A.2d 277, 286 (Pa. 2003) (recognizing Pennsylvania
Constitution’s Article I, Section 16 provision of fundamental rights, including
____________________________________________
6 Article I, Section 1 of the Pennsylvania Constitution, Ҥ 1. Inherent rights
of mankind”, provides, “All men are born equally free and independent, and
have certain inherent and indefeasible rights, among which are those of
enjoying and defending life and liberty, of acquiring, possessing and protecting
property and reputation, and of pursuing their own happiness.” PA CONST
Art. 1, § 1.
-8-
J-A27039-23
the right to enjoy life and liberty, the pursuit of happiness, and the protection
of one’s reputation)
Appellant maintains that since he invokes fundamental rights, a most
stringent, strict scrutiny level of judicial review of the DUI statute must be
undertaken to determine whether the statute is narrowly tailored and
necessary to achieve a compelling governmental interest with respect to such
rights. The statute cannot withstand this scrutiny, Appellant continues, where
it criminalizes the driving of MMA patients for having in their blood Schedule I
controlled substances in the form of marijuana metabolites that have no
potential to impair driving. In this regard, he points to the undisputed expert
medical evidence admitted during his criminal trial explaining that inactive
marijuana metabolites often remain in the blood of medical marijuana patients
long after the impairing effects of marijuana use have ended. Thus, Appellant
concludes, a compelling interest cannot be identified in a DUI statute that
criminalizes a driver’s status bearing no relation to driver safety.
This central argument underlies Appellant’s three constitutional issues
enumerated above in which he asserts that Section 3802(d)(1)(i) and (iii)
violate, respectively, his equal protection rights, substantive due process
rights, and procedural due process rights. Before we address each argument
in turn, we determine the appropriate level of judicial scrutiny to apply.
[T]he well-established rule [provides] that a law is
presumed to be constitutional and may only be found to be
unconstitutional if the party challenging the law can prove that it
“clearly, palpably, and plainly” violates the Constitution. See
-9-
J-A27039-23
Consumer Party of Pa. v. Commonwealth, 510 Pa. 158, 507
A.2d 323, 331–32 (1986) (citing Pennsylvania Liquor Control
Bd. v. The Spa Athletic Club, 506 Pa. 364, 485 A.2d 732, 735
(1984)); see also 1 Pa.C.S. § 1922(3). Furthermore, in
determining the constitutionality of a law, this Court may not
question the propriety of the public policies adopted by the
General Assembly for the law, but rather is limited to examining
the connection between those policies and the law. See Finucane
v. Pennsylvania Milk Marketing Bd., 136 Pa.Cmwlth. 272, 582
A.2d 1152, 1154 (1990); see also Parker v. Children's Hosp.
of Phila., 483 Pa. 106, 394 A.2d 932, 937 (1978) (“the power of
judicial review must not be used as a means by which the courts
might substitute [their] judgment as to the public policy for that
of the legislature”).
Article I, section 1 of the Pennsylvania Constitution provides: “All
men are born equally free and independent, and have certain
inherent and indefeasible rights, among which are those of
enjoying and defending life and liberty, of acquiring, possessing
and protecting property and reputation, and of pursuing their own
happiness.” Pa. Const. art. I, § 1. This section, like the due
process clause in the Fourteenth Amendment of the United States
Constitution, guarantees persons in this Commonwealth certain
inalienable rights. See Gambone v. Commonwealth, 375 Pa.
547, 101 A.2d 634, 636–37 (1954); see also Meyer v.
Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042
(1923). While the General Assembly may, under its police power,
limit those rights by enacting laws to protect the public health,
safety, and welfare, any such laws are subject to judicial review
and a constitutional analysis. Gambone, 101 A.2d at 636;
Krenzelak v. Krenzelak, 503 Pa. 373, 469 A.2d 987, 993
(1983).
The constitutional analysis applied to the laws that impede upon
these inalienable rights is a means-end review, legally referred to
as a substantive due process analysis. See Adler v. Montefiore
Hosp. Ass'n of Western Pennsylvania, 453 Pa. 60, 311 A.2d
634, 640–41 (1973); see also Moore v. City of East Cleveland,
Ohio, 431 U.S. 494, 500–05, 97 S.Ct. 1932, 52 L.Ed.2d 531
(1977). Under that analysis, courts must weigh the rights
infringed upon by the law against the interest sought to be
achieved by it, and also scrutinize the relationship between the
law (the means) and that interest (the end). See Adler, 311 A.2d
at 640–41; In re Martorano, 464 Pa. 66, 346 A.2d 22, 26
(1975); see also Moore, 431 U.S. at 500–05, 97 S.Ct. 1932;
- 10 -
J-A27039-23
Lawrence v. Texas, 539 U.S. 558, ––––, 123 S.Ct. 2472, 2477,
156 L.Ed.2d 508 (2003); Wolff v. McDonnell, 418 U.S. 539, 558,
94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (“The touchstone of due
process is protection of the individual against arbitrary action of
the government.”). Where laws infringe upon certain rights
considered fundamental, such as the right to privacy, the right to
marry, and the right to procreate, courts apply a strict scrutiny
test. See Stenger v. Lehigh Valley Hosp. Center, 530 Pa. 426,
609 A.2d 796, 799–802 (1992) (acknowledging right to privacy as
fundamental right protected under Pennsylvania Constitution);
see also Roe v. Wade, 410 U.S. 113, 163, 93 S.Ct. 705, 35
L.Ed.2d 147 (1973) (women's right to terminate pregnancy is a
fundamental interest protected under right of privacy); Griswold
v. Connecticut, 381 U.S. 479, 485–86, 85 S.Ct. 1678, 14 L.Ed.2d
510 (1965) (recognizing right to marital privacy in the home as
fundamental); Lawrence, 539 U.S. at ––––, 123 S.Ct. at 2474
(reaffirming fundamental privacy rights). Under that test, a law
may only be deemed constitutional if it is narrowly tailored to a
compelling state interest. See, Stenger, 609 A.2d at 802; see
also Roe, 410 U.S. at 163, 93 S.Ct. 705; Griswold, 381 U.S. at
485–86, 85 S.Ct. 1678.
Alternatively, where laws restrict the other rights protected under
Article 1, section 1, which are undeniably important, but not
fundamental, Pennsylvania courts apply a rational basis test. See
Adler, 311 A.2d at 640–41; Pa. State Bd. of Pharmacy v.
Pastor, 441 Pa. 186, 272 A.2d 487, 490–91 (1971);
Pennsylvania Medical Society v. Foster, 147 Pa.Cmwlth. 528,
608 A.2d 633, 637–38 (1992); see also West Coast Hotel Co.
v. Parrish, 300 U.S. 379, 392, 57 S.Ct. 578, 81 L.Ed. 703 (1937)
(recognizing that most interests are not absolute and are subject
to rational basis test). According to that test, which was defined
by this Court almost a century ago, a law “must not be
unreasonable, unduly oppressive or patently beyond the
necessities of the case, and the means which it employs must
have a real and substantial relation to the objects sought to be
attained.”[] Gambone, 101 A.2d at 637; see also Adler, 311
A.2d at 640; Pastor, 272 A.2d at 490–91; Foster, 608 A.2d at
637.
Nixon, 839 A.2d at 286–88.
- 11 -
J-A27039-23
Appellant asserts that his constitutional claims merit strict scrutiny
analysis because he frames his challenge to the relevant DUI statutory scheme
as one implicating MMA patients’ fundamental rights to enjoyment, happiness,
and reputation. The enjoyment and happiness, he explains, derive from the
act of driving. As such, we construe his claim in this regard as one seeking to
vindicate his purported fundamental right to experience enjoyment and
happiness while driving.
However, Appellant cites to no precedent to support his proposition that
the fundamental rights to enjoyment of one’s life and the pursuit of happiness
are encompassed in one’s act of driving. It is well-settled that act of driving,
itself, does not implicate a fundamental right, as it is merely a privilege. See
Commonwealth v. Frederick, 237 A.3d 1038 (Pa. Super. 2020);
Commonwealth v. Bell, 167 A.3d 744, 747 (Pa. Super. 2017), affirmed, 211
A.3d 761 (Pa. 2019), cert. denied, ---U.S. ----, 140 S.Ct. 934, 205 (U.S. Jan
21, 2020). See also Renfroe v. Cmwth., Dep’t of Transp., 179 A.3d 644
648 (Pa. Cmwlth. 2018) (stating it is well-settled that driving in Pennsylvania
is a privilege not a right). As such, we reject Appellant’s notion that the
derivative “enjoyment” or “happiness” one experiences through driving
elevate the nature of the interest involved to a fundamental one. See, e.g.,
In re Bartkowski Inv. Group, 106 A.3d 230, ---, n. 5 (Pa. Cmwlth 2014)
(observing jurisprudence deeming the right to “enjoyment of private property”
protected under Article I, Section 1 of the Pennsylvania Constitution to be a
- 12 -
J-A27039-23
qualified right, which may be “reasonably limited” by zoning ordinances
enacted pursuant to a municipality’s police powers)7(citing C & M
Developers, Inc. v. Bedminster Twp. Zoning Hr'g Bd., 820 A.2d 143, 150
(Pa. 2002)). See also Johnston v. Township of Plumcreek, 859 A.2d 7,
10-11 (Pa. Cmwlth 2004) (strict scrutiny review did not apply to municipal
ordinance that residents claimed violated their fundamental “right to protect
one’s own life” under Article I, Section 1; despite complaint that government
mandate to hook up to a new water main delivering water from unknown
source increased the risk of illness from foul play or negligence and, therefore
implicated fundamental right, court held such right not implicated). Therefore,
we decline to apply a heightened level of judicial scrutiny of the DUI statute
on this basis and review it, instead, for reasonableness.
So, too, do we reject Appellant’s contention that heightened scrutiny of
Section 3802(d)(1)(i) and (iii)’s applies on the question of whether it affects
the reputation of MMA patients convicted under this statute. Our
jurisprudence acknowledges that most interests and the laws that implicate
them are reviewed under the rationale basis standard, see Nixon, supra,
and this is so despite the inescapable fact that most if not all criminal
____________________________________________
7 While decisions of the Commonwealth Court are not binding upon us, they
may serve as persuasive authority. See Commonwealth v. Ortega, 995
A.2d 879, 885 (Pa. Super. 2010).
- 13 -
J-A27039-23
convictions under such statutes will affect a defendant’s reputation to some
degree.
Herein, Appellant has not demonstrated how an MMA patient’s
reputation is peculiarly implicated in the present DUI context so as to
distinguish his or her case from the vast majority of criminal cases. Indeed,
Appellant’s attempt to equate the ordinary reputational consequences of any
criminal conviction, including one under Section 3802(d)(1)(i) or (iii), to the
inapposite situation in In re J.B., which held internet SORNA offender registry
directly affects reputation, is misplaced, as the present matter involves neither
the prospect of widespread publication of such information nor the real
potential for a community rebuke. See also Commonwealth v. Morgan,
258 A.3d 1147, 1152-54 (Pa. Super. 2021) (in assessing fundamental interest
in reputation, court focused on the extent to which sex offender information
was readily available and/or accessible and to which it would subject him to
ostracism and harassment); T.G.A. v. Department of Education, 302 A.3d
830 (Pa. Cmwlth. 2023) (holding Department’s listing on a public website
teacher’s criminal charges after his acquittal and their expungement
implicated teacher’s substantive due process right to reputation; protection
from false or misleading information affecting how one is regarded in
community likelihood of public viewership and potential for consequential
harassment and ostracism identified as key concerns in the reputational
effects inquiry).
- 14 -
J-A27039-23
Unlike the governmental actions at issue in In re J.B., Morgan, and
T.G.A., the governmental act complained of in the case sub judice does not
involve subject matter directly implicating one’s reputation. Without a direct
nexus between the government action involved and one’s fundamental right
to reputation, we decline to apply strict scrutiny review to this issue and,
instead, review the DUI statute for reasonableness under the rational basis
test.
Turning, then, to Appellant’s equal protection claim, we note that “[t]he
essence of the constitutional principle of equal protection under the law is that
like persons in like circumstances will be treated similarly.” Commonwealth
v. Bullock, 868 A.2d 516, 524 (Pa. Super. 2005), affirmed, 590 Pa. 480, 913
A.2d 207 (2006), cert. denied, 550 U.S. 941, 127 S.Ct. 2262, 167 L.Ed.2d
1103 (2007). However, “the principle does not absolutely prohibit the
Commonwealth from classifying individuals for the purpose of receiving
different treatment, ...and does not require equal treatment of people having
different needs. Indeed, the Commonwealth may create legislative
classifications so long as the classifications rest upon some ground of
difference which justifies the classification and [have] a fair and substantial
relationship to the object of the legislation.” Id. (internal citations and
quotation marks omitted). Thus, the Equal Protection Clause does not confer
uniform protection to all persons under any circumstances or “obligate the
- 15 -
J-A27039-23
government to treat all persons identically.” Commonwealth v. Shawver,
18 A.3d 1190, 1194 (Pa. Super. 2011).
We reiterate the framework for deciding upon the level of judicial
scrutiny, albeit with specific reference to an equal protection claim analysis:
Equal protection analysis recognizes three types of
governmental classification, each of which calls for a
different standard of scrutiny. The appropriate
standard...is determined by examining the nature of
the classification and the rights thereby affected. In
the first type of case, where the classification relates
to who may exercise a fundamental right or is based
on a suspect trait such as race or national origin, strict
scrutiny is required. When strict scrutiny is employed,
a classification will be invalid unless it is found to be
necessary to the achievement of a compelling state
interest.
The second type of case involves a classification
which, although not suspect, is either sensitive or
important but not fundamental. Such a classification
must serve an important governmental interest and
be substantially related to the achievement of that
objective.
The third type of situation involves
classifications which are neither suspect nor sensitive
or rights which are neither fundamental nor
important. Such classifications will be valid as long as
they are rationally related to a legitimate
governmental interest.
Id. (quoting [Bell, 512 Pa. at 344–45, 516 A.2d at 1177–78
(1986)).
Courts generally consider constitutional challenges involving
criminal statutes, which create different groups of offenders or
various sentencing categories going to the duration of
confinement, as type-three classifications. Shawver, supra. A
particular criminal statute will be deemed consistent with the
Equal Protection Clause if the statute is rationally related to a
- 16 -
J-A27039-23
legitimate government interest. Small v. Horn, 554 Pa. 600,
615, 722 A.2d 664, 672 (1998). “[U]nder the rational basis test,
if any state of facts can be envisioned to sustain the classification,
equal protection is satisfied.” Commonwealth v. Albert, 563 Pa.
133, 141, 758 A.2d 1149, 1153 (2000). “Moreover, courts are
free to hypothesize reasons why the legislature created the
particular classification at issue and if some reason for it exists, it
cannot be struck down, even if the soundness or wisdom in
creating the distinction is questioned.” Id.
Commonwealth v. Jezzi, 208 A.3d 1105, 1112–13 (Pa. 2019).
The crux of Appellant’s Equal Protection Clause challenge is that the DUI
statutory scheme at Sections 3802(d)(1)(i) and (iii) impermissibly treats like
persons in like circumstances differently when it requires impairment evidence
to convict a driver who lawfully used a Schedule II/III prescription
drug/controlled substance but not to convict a driver who lawfully used
Schedule I prescription medical marijuana. He maintains that no basis in
relevant fact exists to justify this disparate treatment. Appellant’s brief at 5,
seriatim.
We disagree that the two classes identified by Appellant involve like
persons as that term is used in equal protection analysis, as only MMA patients
are prescribed Schedule I controlled substances that the General Assembly
has determined warrant utmost attention and oversight. Specifically, the
relevant disparate treatment under Section 3801(d)(1)(i) accords with the
General Assembly’s identification of concerns specific to Schedule I illegal
controlled substances with respect to not only their substantial potential for
abuse but also the still evolving assessment of their medical value and
- 17 -
J-A27039-23
efficacy. Thus, our jurisprudence has recognized that although the General
Assembly passed the MMA in acknowledgement of the benefit of a statutory
scheme permitting a medical marijuana supply chain ending with lawful,
therapeutic use of physician prescribed medical marijuana,8 it also
emphasized that ongoing concerns attendant to Schedule I marijuana required
____________________________________________
8 In Commonwealth v. Stone, 273 A.3d 1163 (Pa. Super. 2022), appeal
denied, 286 A.3d 213 (Pa. 2022) this Court acknowledged “the rapidly
evolving state of the law regarding both medical and non-medical
marijuana[]”, as follows:
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).
...
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.
Stone, 273 A.3d at 1171 n. 9.
- 18 -
J-A27039-23
both the continued classification of marijuana as a Schedule I controlled
substance and the legislative acknowledgement that the Act, itself, was to be
a temporary measure making medical marijuana available for potential
therapeutic uses through strictly controlled measures and protocols that when
followed, would not lead to criminal punishment. See Commonwealth v.
Dabney, 274 A.3d 1283 (Pa. Super. 2022), appeal denied, 286 A.3d 1233
(Pa. 2022); Jezzi, 208 A.3d at 1114.
For purposes of driving after use of the controlled substance, therefore,
the MMA retained the classification distinctions between the otherwise illegal
controlled substances listed in Schedule I and the lawful controlled substances
Schedules II and III.
The MMA did not remove marijuana from the list of Schedule I
controlled substances. Jezzi, 208 A.3d at 1115. There is no need
for “medical marijuana” to be listed as a Schedule I controlled
substance because medical marijuana is marijuana, specifically
marijuana “for certified medical use.” 35 P.S. § 10231.103. All
marijuana, medical or otherwise, remains a Schedule I controlled
substance in Pennsylvania. Stone, 273 A.3d at 1172-73.
Section 3802(d)(1)(i) prohibits driving with marijuana in one's
blood, notwithstanding the MMA. The MMA takes precedence over
the CSA related to “[t]he growth, processing, manufacture,
acquisition, transportation, sale, dispensing, distribution,
possession and consumption of medical marijuana permitted
under” the MMA. 35 P.S. § 10231.2101. Therefore, “compliance
with the MMA will not constitute a crime under the CSA.”
Commonwealth v. Barr, ––– Pa. ––––, 266 A.3d 25, 41 (2021)
(quoting Commonwealth v. Barr, 240 A.3d 1263 (Pa. Super.
2020)). However, what Section 3802(d)(1) prohibits is not
“growth, processing, manufacture, acquisition, transportation,
sale, dispensing, distribution, possession [or] consumption of
medical marijuana” but rather driving with a controlled substance
in one's blood. Yeager, supra, at *7 (Stabile, J., concurring)
- 19 -
J-A27039-23
(“Simply stated, it is illegal to smoke or vape marijuana and
drive.”).9 The MMA does not take precedence over laws not
specified in 35 P.S. § 10231.2101. See 35 P.S. § 10231.1309(1)
(allowing civil and criminal penalties for negligently undertaking
tasks under the influence of medical marijuana).
Dabney, 274 A.3d at 1291–92.
Accordingly, given both the General Assembly’s consideration of the
specific, unique risks associated with Schedule I controlled substances when
it enacted the MMA, and marijuana’s continued classification under Schedule
I, we discern no improper discrimination stemming from the General
Assembly’s retention of Section 3802(d)(1)(i) and (iii) during implementation
of the MMA. That Section 3802(d)(1)(i) and (iii) potentially affects MMA
patients differently than Schedule II/III prescription medication patients is
simply the result of the General Assembly’s legitimate measure to deter the
public from ingesting Schedule I controlled substances and driving.
In his second issue, Appellant asserts that the DUI statute violates the
substantive due process rights of MMA patients who use medical marijuana
prescribed by a physician to treat their medical conditions because the statute
is overly broad and encompasses lawful conduct, namely, driving while
unimpaired. He argues:
The DUI statute’s criminalization of the mere presence of
marijuana or any of its metabolites in an individual’s blood,
without proof of impairment, on its face punishes a status (having
any amount of marijuana or any of its active or inactive
metabolites in an individual’s blood) which is overbroad and bears
no relationship to the legitimate interest of keeping the roads safe
by removing impaired drivers. Even the presence of inactive
metabolites of marijuana, which have no effect on a person’s
- 20 -
J-A27039-23
ability to drive as they are by definition inactive (and which can
remain in a person’s system for weeks or even a month) is pre se
criminalized by the current DUI statute. In this regard, the
testimony of all three experts at trial (and the expert reports)
confirmed that the presence of inactive marijuana metabolites
alone would have no effect on a person since they are inactive by
definition. Under the DUI statute, however, the presence of even
one detectable nanogram of any inactive marijuana metabolite
would be enough to convict a medical marijuana patient of DUI.
In addition, the overbroad nature of the DUI statute in this regard
is evidenced by the fact that even a person who inhaled
secondhand marijuana smoke, or used marijuana in another
jurisdiction outside of Pennsylvania weeks in the past, would fall
within the scope of the DUI statute even if they only had inactive
metabolites of marijuana in their system, without any evidence of
impairment to drive safely. Family members and/or friends of
patients who use medical marijuana are placed in jeopardy of
being charged and convicted of a DUI offense in Pennsylvania
simply because they were exposed to secondhand marijuana
smoke.
Brief for Appellant at 41.
A statute is unconstitutionally overbroad “only if it punishes lawful
constitutionally protected activity as well as illegal activity. Thus, in
determining whether a statute is unconstitutional due to overbreadth, a
court's first task is to determine whether the enactment reaches a substantial
amount of constitutionally protected conduct.” Commonwealth v. McCoy,
69 A.3d 658, 662 (Pa. Super. 2013) (cleaned up).
Appellant’s overbreadth argument posits that Section 3802(d)(1)(i)
unconstitutionally criminalizes what should be lawful conduct, that is, driving
while unimpaired. Because the statute reaches those who drive with the
presence of inactive metabolites lacking any potential to impair their driving,
- 21 -
J-A27039-23
it comes under jurisprudence invalidating unconstitutionally overbroad
statutes. We find Appellant’s argument unavailing.
In Commonwealth v. Murphy, 239 A.3d 96 (Pa. Super. 2020) (non-
precedential decision)9, a panel of this Court rejected the appellant’s argument
that, given the MMA’s authorization to use medical marijuana under specific
protocols, Section 3802(d)(1)(i) is unconstitutionally overbroad because its
proscription of driving with Schedule I marijuana or its metabolites in one’s
blood punishes lawful as well as unlawful usage. The panel majority dismissed
the issue in short shrift, observing that he “cite[d] to no authority to support
that driving with marijuana metabolites in one’s blood, or utilizing marijuana
in any context, amounts to “constitutionally protected conduct.” Id. at *2.
This Court previously had addressed the same substantive due process
challenge to section 3802(d)(1) and determined the statute is neither vague
nor overbroad because there exists no constitutional right to ingest marijuana
prior to driving. In Commonwealth v. Etchison, 916 A.2d 1169 (Pa. Super
2007), defendant/appellant Etchison argued on appeal that the DUI statute
was overbroad and thus violated due process because it permitted his
conviction solely on the presence of metabolites, regardless of actual
impairment. To this effect, he maintained that “an individual could be sober
____________________________________________
9 Pursuant to the Pennsylvania Rules of Appellate Procedure, we may cite non-
precedential memorandum decisions of this Court that were filed after May 1,
2019, for their “persuasive value.” Pa.R.A.P. 126(b)(1)-(2).
- 22 -
J-A27039-23
and simply have residue of past usage in their blood. . . . Passive inhalation
of marijuana smoke, false positives or residue in the body long after a period
of impairment would all be a violation of the statute. The statute sweeps too
broadly and causes conviction of both sober as well as impaired drivers.” Id.
at 1173.
The Etchison majority explained succinctly that there was “no
constitutional right to the use of marijuana prior to driving,” and affirmed his
conviction under Section 3802(d)(1)(i). Id. at 1174. While the decision
further recognized that there was also no right to the use of marijuana at the
time, this observation does not affect the constitutionally based rationale that
Section 3802(d)(1)(i) survives a due process, overbreadth attack from one
who ingests marijuana and drives with marijuana metabolites in his blood.
Id. at 1173-74.
The Etchison holding applies to the present matter, as there continues
to exist no constitutional or legal right to drive with consumed marijuana or
its metabolites in one’s system. Appellant’s assertion of fundamental rights
to enjoyment, happiness, and security in reputation while driving, for reasons
discussed supra, reveals no cause to invalidate Section 3802(d)(1)(i) when
the General Assembly has a legitimate interest to apply its police powers
through the statute to deter driving with Schedule I controlled substances in
one’s system, not only because of their association with high risk of abuse and
uncertain medical value, but also, in the case of marijuana, because of the
- 23 -
J-A27039-23
challenges associated with predicting when active metabolites capable of
impairment may return to the bloodstream. Our jurisprudence has
acknowledged the General Assembly’s ongoing study and consideration of
marijuana’s classification under Schedule I as it relates to both the DUI statute
and the MMA, and it has retained Section 3802(d)(1)(i) as it was written the
time of Etchison. Accordingly, we discern no unconstitutional, significant
overbreadth with the statute, as it coexists with the MMA as a reasonable,
rational measure to advance the legitimate governmental interest in limiting
driving after marijuana use and promoting lawful marijuana usage by MMA
patients. Accordingly, Appellant’s substantive due process claim fails.
In Appellant’s final issue, he contends that the DUI statute, both on its
face and independently as applied to Appellant, violates the procedural due
process guarantees and rights provided by the Pennsylvania Constitution
because it creates an unconstitutional irrebuttable presumption of guilt for
patients who use medical marijuana lawfully. The irrebuttable presumption is
that patients lawfully taking Schedule I medical marijuana are unable to drive
safely when they have any amount of marijuana or metabolite thereof in their
blood. As such, the statute requires no evidence of impaired ability to drive
safely. In contrast, the DUI statute’s subsection applicable to patients taking
prescription Schedule II/III controlled substance requires evidence of
impaired driving to convict.
- 24 -
J-A27039-23
Appellant maintains that the statute’s irrebuttable presumption of guilt
unconstitutionally denies medical marijuana patients and those who inhale
secondhand marijuana smoke of their procedural due process rights to rebut
this presumption of DUI with proof that their ability to drive safely was not
impaired. This was demonstrated in his trial, he maintains, as he was
acquitted on the count of DUI-Impairment but convicted on the counts related
to marijuana metabolites being present in his blood at the time of driving.
Appellant points to expert witnesses who offered unchallenged
testimony at his trial that active metabolites in the blood do not necessarily
mean impairment, as they may show up in the blood of a regularly using
patient’s blood weeks after the most recent use of medical marijuana, or may
not cause impairment immediately after consumption.10 Inactive metabolites,
they explained, cause no impairment and would not affect a patient’s driving.
Yet, Appellant argues, such testimony which ought to bear on the
pertinent issue of safe, unimpaired driving under Section 3802(d)(1)(i) is
rendered irrelevant because of the subsection’s irrebuttable presumption of
guilt resting solely upon the presence of Schedule I marijuana or marijuana
metabolites in the driver’s blood at the time of driving. Thus, he concludes
the statute is unconstitutional on the same rationale expressed in In re J.B.,
supra (SORNA violates juvenile offenders’ due process rights through use of
an irrebuttable presumption of recidivism), namely, that the presumed fact
____________________________________________
10 Appellant’s blood test revealed active Delta-9-THC metabolites in his blood.
- 25 -
J-A27039-23
underlying the irrebuttable presumption here “is not universally true and
reasonable alternative means of ascertaining the presumed fact are available.
. . .” Id.
Section 3802(d)(1)(i) rests not on an irrebuttable presumption of
impaired driving but, instead, on a per se proscription against driving while
there is present in one’s blood a Schedule I controlled substance or a
metabolite thereof. In Commonwealth v. Karner, 193 A.3d 986, 990 (Pa.
Super. 2018), this Court acknowledged “75 Pa.C.S.A. § 3802(d)(1)(iii),
concerning metabolite in the blood, is a strict liability offense per se and does
not have a mens rea of recklessness or gross negligence. See generally
Commonwealth v. Jones, 121 A.3d 524, 529 (Pa. Super. 2015) (stating:
‘[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).” See also 10A West's Pa. Prac.,
Driving Under the Influence § 27:36 (2022 ed.) (“There is no requirement [in
§ 3802(d)(1)] that the individual be either “under the influence” of the
prohibited substance or that the person's ability to operate a vehicle safely be
impaired in any way.”). Indeed, the DUI statutory scheme has a separate
subsection, Subsection 3802(d)(2), attaching criminal liability based
specifically on evidence of impairment. Accordingly, we deem In re J.B.
inapposite on this issue and, thus, discern no merit to Appellant’s procedural
due process argument.
- 26 -
J-A27039-23
For the foregoing reasons, we deny Appellant’s appeal and affirm
judgment of sentence.
Judgment of sentence affirmed.
Judge Nichols joins the opinion.
Judge Lazarus files a dissenting opinion.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 07/23/2024
- 27 -