2. Toxicological evidence

The Commonwealth also offered expert toxicological opinion testimony to address that portion of the defendant's Motion challenging the charged violation of Section 3802 alleging the operation of a motor vehicle while any byproduct of the use of marijuana is detectable in the person's blood.

Dr. Cohn testified that he had analyzed the defendant's blood sample, and Exhibit C-2 was admitted as his report. The testing revealed 2.3 nanograms/ml of delta-9-THC, the active ingredient in marijuana, and 18 nanograms/ml 9-carboxy-THC, described as an inactive marijuana metabolite. Dr. Cohn testified that 9-carboxy-THC and "Delta-9-carboxy-THC" are the same thing, and that they were "equivalent." Dr. Cohn contended that the two substances 9-carboxy-THC and "Delta-9-carboxy-THC" have the same molecular structure.

Exhibit C-3 is the Department of Health's "minimum detectable limits" notice published in accordance with 75 Pa.C.S. § 1547(c)(4). (1)

That provision governs the admissibility of chemical test evidence in DUI drug cases brought under Section 3802(d). Dr. Cohn acknowledged that the Department of Health's "minimum detectable limits" notice identifies "Delta-9-carboxy-THC" as the marijuana metabolite for which a 5 ng/ml minimum detectable limit has been established. He admitted that the metabolite he found in defendant's blood was an inactive byproduct of the body's processing of delta-9-THC, the active ingredient in marijuana.

Dr. Cohn acknowledged that the Department's "minimum detectable limits" notice does not prescribe a "minimum detectable limit" for the active "THC" ingredient in marijuana.

At a subsequent hearing, the Commonwealth called Dr. Jeffrey Shoemaker, the Director of the Division of Chemistry and Toxicology in the Department of Health's Bureau of Laboratories. Dr. Shoemaker authenticated the "minimum detectable limits" Notice that identifies "Delta-9-carboxy-THC" as the marijuana metabolite for which a 5 ng/ml minimum detectable limit has been established. He also testified that "THC" or delta-9-THC is the active ingredient in marijuana. He corroborated Dr. Cohn's testimony that 9 carboxy THC is same substance as Delta-9-carboxy THC, and that this substance is an inactive metabolite of THC. However, on cross-examination, Dr. Shoemaker acknowledged that 9-carboxy-THC is actually a byproduct of a byproduct of the active ingredient.

Finally, Dr. Shoemaker acknowledged the extensive "half-life" and lengthy detectability of the inactive metabolite Delta 9-carboxy-THC. He testified that 9-carboxy-THC remains in a user's blood and detectable for a few days, and for a frequent user for up to 2 -3 weeks. He admitted that the active ingredient would be practically undetectable, and no longer active, within hours of use.

Dr. Shoemaker testified that the minimum detectable limits notice outlined minimum limits that were within the capabilities of all licensed labs. Those limits were not intended to reflect a minimum toxicologically effective amount or limit.

QUESTIONS PRESENTED

    2. Did the Commonwealth establish a prima facie case on the alleged violation of Section 3802(d)(1)(i) where the Commonwealth did not offer any admissible evidence that defendant's blood contained a Schedule 1 controlled substance?

    3. Is Section 3802(d)(1)(iii) unconstitutional as applied here where the evidence does not establish that the charged substance had any effect on a motorist at any relevant time?

ARGUMENT

2. The Commonwealth failed to establish a prima facie case on the alleged violation of Section 3802(d)(1)(i) where the Commonwealth did not offer any admissible evidence that defendant's blood contained a Schedule 1 controlled substance.

The defendant has Moved to dismiss the DUI charge, alternatively because the Commonwealth has not established a prima facie case, or because Section 3802(d) unconstitutionally criminalizes the operation of a motor vehicle while there is present in his blood any amount of an inactive byproduct of the consumption of marijuana.

The Commonwealth has not established a prima facie case on the charged violation of Section 3802(d)(1)(i) which requires evidence that the defendant's blood contained a Schedule I controlled substance. (2)

The evidence offered on the Section 3802(d)(1)(i) consists of the test results that show defendant's blood contained 2.3 nanograms/ml of delta-9-THC, the active ingredient in marijuana. (3)

The Vehicle Code provides an admissibility rule that requires compliance with the "minimum detectable level" rules established by the Department of Health. Section 1547(c)(4) of the Vehicle Code governs the admissibility of the results of blood tests for drugs as follows:

(4) For purposes of blood testing to determine the amount of a Schedule I or non-prescribed Schedule II or III controlled substance or a metabolite of such a substance, the Department of Health shall prescribe minimum levels of these substances which must be present in a person's blood in order for the test results to be admissible in a prosecution for a violation of section 1543(b)(1.1), 3802(d)(1), (2) or (3) or 3808(a)(2).

75 Pa.C.S. § 1547(c)(4). This rule precludes the introduction of any evidence that marijuana was present in a motorist's blood.
The Commonwealth's expert witnesses both admitted that the Department's "minimum detectable limits" notice does not prescribe a "minimum detectable limit" for the active "THC" ingredient in marijuana. Exhibit C-3 is the Department of Health's "minimum detectable limits" notice published in accordance with 75 Pa.C.S. § 1547(c)(4).

Accordingly, there is no admissible evidence that defendant drove with a Schedule I controlled substance in his blood, and the charged violation of Section 3802(d)(1)(i) must be dismissed.

    3. Section 3802(d)(1)(iii) is unconstitutional, and may not be applied, where the evidence does not establish that the charged substance had any effect on a motorist at any relevant time.

Section 3802(d)(1)(iii) is unconstitutional as applied to a person whose blood contained inactive metabolites that may have been present for days without effect. That provision would violate substantive due process rights secured to defendant by both the state and federal Constitutions.

Substantive due process imposes limits on the government's police power. The Pennsylvania Supreme Court has described the substantive due process rules in similar terms over the years:

The question whether any particular statutory provision is so related to the public good and so reasonable in the means it prescribes as to justify the exercise of the police power, is one for the judgment, in the first instance, of the law-making branch of the government, but its final determination is for the courts.

Khan v. State Board of Auctioneer Examiners, 577 Pa. 166; 842 A.2d 936, 945 (2004), citing Gambone v. Commonwealth, 375 Pa. 547, 101 A.2d 634, 636-37 (Pa. 1954). The Khan opinion outlines the controlling "real and substantial relationship" test:

To constitute a lawful exercise of the state's police power, social and economic legislation must first be directed toward a valid state objective. Id. To withstand a substantive due process challenge, a statute or regulation must seek to achieve a valid state objective by means that are rationally related to that objective. Id. The rational relationship standard of substantive due process by which legislation is judicially measured is that the statute or regulation at issue must have a real and substantial relationship to the object sought to be obtained. n7

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n7 The requirement that enactments have a real and substantial relationship to the object sought to be obtained is a stronger test than the rational basis test employed in an equal protection analysis. Nixon; Pennsylvania State Board of Pharmacy v. Pastor, 441 Pa. 186, 272 A.2d 487 (Pa. 1971).

Khan v. State Board of Auctioneer Examiners, 842 A.2d 946-947 (emphasis supplied).

Substantive due process was the apparent basis for the invalidation of a portion of the former DUI law in Commonwealth v. Barud, 545 Pa. 297, 681 A.2d 162, 163-164, (1996). (4) Substantive due process can also be understood, in the context presented here, as a guarantor of autonomy, the right to be left alone. See, Note: Last Resorts and Fundamental Rights: the Substantive Due Process Implications of Prohibitions on Medical Marijuana, 118 Harv. L. Rev. 1985 (2005), citing Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), as exemplifing "the autonomy strand in the substantive due process tradition". Justive Kennedy began his majority opinion by stating for the Court that "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places."

The "metabolite" provision of Section 3802 may not constitutionally be applied to marijuana metabolites because there is no relationship between the criminalized presence of inactive marijuana metabolites and the protection of the public.

CONCLUSION

The charged violation of Section 3802(d)(1)(i) must be dismissed because there is no admissible evidence that defendant drove with a Schedule I controlled substance in his blood. Further, Section 3802(d)(1)(iii) may not constitutionally be applied to inactive marijuana metabolite cases.

Respectfully Submitted,

1. Section 1547(c)(4) governs the admissibility of the results of blood tests for drugs as follows:

(4) For purposes of blood testing to determine the amount of a Schedule I or non-prescribed Schedule II or III controlled substance or a metabolite of such a substance, the Department of Health shall prescribe minimum levels of these substances which must be present in a person's blood in order for the test results to be admissible in a prosecution for a violation of section 1543(b)(1.1), 3802(d)(1), (2) or (3) or 3808(a)(2).

2. Section 3802(d)(i) provides

(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;

(iii) metabolite of a substance under subparagraph (i) or (ii).

3. The separate "metabolite" charge of violating Section 3802(d)(1)(iii) is implicated by the evidence that defendant's blood contained 18 nanograms/ml 9-carboxy-THC, described as an inactive marijuana metabolite. We address that issue infra.

4. We suggest that Barud is best understood as a substantive due process case in which the principal defect was that the statute failed to permit citizens to determine when their conduct would violate the law. On this test, Section 3802(d)(1)(iii) may not constitutionally be applied where the Commonwealth's witnesses admit that residual evidence of marijuana metabolites will remain in the blood system for days if not weeks.