PA DUI Controlled Substance Lawyers

Thank you for visiting Lampman Law. If you or someone you love is charged with DUI Controlled Substance in Pennsylvania, we can help. We are experienced criminal defense and DUI lawyers that are in Pennsylvania’s district and trial courts daily. We represent people charged with crimes throughout Northeastern and Central Pennsylvania. Since Lampman Law opened we have zealously defended people facing DUI Controlled Substance accusations and have helped our clients avoid the criminal consequences and social stigma of a DUI Drug conviction.

If you would like us to examine your case, please call Lampman Law at 570-371-3737 to personally discuss the matter with us. We offer a free phone or in-office consultation. All consultations are also welcoming, free of pressure, and confidential.  

75 Pa.C.S. § 3802(d). Pennsylvania’s DUI Controlled Substance Laws

In Pennsylvania, it is illegal for a drive to operate or control a vehicle with certain non-prescribed drugs in their blood. Obviously, the government must produce a lab report (and supporting testimony) that shows that the accused had the controlled substance(s) in their blood at the time of driving. In these DUI Drug Metabolite prosecutions, it is important for the defense to consider why the arresting officer requested a blood draw and the circumstances of the blood draw.

It is also illegal in Pennsylvania to operate a vehicle while under the influence of any drug that renders the driver incapable of safe driving. To prove a case under this theory, the government does not need to rely on a blood test or a lab report. Here, the government can prove DUI Controlled Substance via testimony that the driver performed appeared to be impaired and/or they performed field sobriety tests poorly.

Penalties for DUI Controlled Substance Convictions in Pennsylvania

All violations under Section 3802(d), DUI Controlled Substance, are treated as incapacity offenses and receive the highest possible penalties.

First-time DUI offenders convicted of DUI Controlled Substance face a mandatory minimum of 72 hours imprisonment, a $1,000.00 fine, a 12-month license suspension, and ignition interlock. The maximum penalties are 6 months and a $5,000.00 fine.

The mandatory minimum penalties for a 2nd DUI conviction at the incapacity level are: 90 days imprisonment, $1,500.00 fine, 18-month license suspension, and 12 months of ignition interlock. Here, the maximum penalty is 5 years and a $10,000.00 fine.

Third and subsequent DUI Controlled Substance convictions have a mandatory minimum of 1-year incarceration, $2,500.00 fine, 18-month license suspension, and 12 months of ignition interlock. The maximum penalty is 5 years and a $10,000.00 fine.

Ignition Interlock is Required for DUI Drug Cases

Even though ignition interlock devices detect alcohol consumption, and not drug use, DUI Controlled Substance offenders are required to comply with the ignition interlock requirements. For more information, read our article on Pennsylvania’s Ignition Interlock Law.

Elements of DUI Controlled Substance in Pennsylvania

In Pennsylvania, a DUI conviction must be supported by evidence beyond a reasonable doubt that:

  1. ​The accused drove or was in actual physical control over the movement of a vehicle.

  2. The vehicle was on a highway or traffic way.

  3. There was, in the individual’s blood, any amount of a:

  • Schedule I controlled substance in their blood. § 3802(d)(1)(i).

  • Non-prescribed Schedule II or Schedule III controlled substance. § 3802(d)(1)(ii).

  • Metabolite of a Schedule I, Schedule II, or Schedule III Controlled Substance. § 3802(d)(1)(iii).

Or that the accused was incapable of safely driving after using:

  • A drug or a combination of drugs. § 3802(d)(2).

  • The combination of alcohol and drug(s). § 3802(d)(3).

  • A solvent or noxious substance. 3802(d)(4).

Understanding PA’s DUI Drug Laws

The DUI Drug Metabolite Rule in Pennsylvania

In Pennsylvania, the government does not have to prove drug impairment or that a driver was incapable of safely driving because of drug use if they have admissible blood evidence that shows the presence of a non-prescribed controlled substance. Pursuant to 75 Pa.C.S. § 3802(d)(1)(iii), the DUI drug metabolite rule, Pennsylvania prohibits operation of a motor vehicle by any driver who had any amount of non-prescribed Schedule I, II, or III controlled substances in their blood, regardless of impairment. Commonwealth v. Etchison, 916 A.2d 1169 (Pa. Super. 2007).

Therefore, to get a conviction in these cases, the government only needs an admissible blood test that shows the presence of a Schedule I, II, or III controlled substance.

Incapable of Safely Driving After Using Drugs

Conversely, pursuant to section 3802(d)(2), the government does not need blood evidence to prove DUI Controlled Substance. In Commonwealth v. Williamson, 962 A.2d 1200, 1204 (Pa. Super. 2008), the Superior Court explained that to convict a person of subsection 3802(d)(2) the Commonwealth only must prove that, while driving or operating a vehicle, the defendant was under the influence of a drug to a degree that impaired their ability to safely drive. Id. at 1204.

In Incapable of Safe Driving DUI Drug cases, the government uses testimony from the police, and sometimes lay witnesses, concerning erratic driving, the accused’s demeanor/appearance (e.g., lethargy, slow movement, shacking, bloodshot eyes, slow or slurred speech, pail or gray-appearing skin, difficulty walking or standing), and their performance on field sobriety tests. Often, the government will use the accused’s statements (admissions) concerning recent drug use to show impairment. Additionally, blood test evidence may also be used if it is properly admitted.

What About Prescription Drug DUIs?

When prescription drugs are the basis for a DUI Controlled Substance prosecution in Pennsylvania, the government must prove that the driver was impaired. Indeed, impairment is the focus of these cases. Even if the lab reports from the blood test show that the accused was within the therapeutic limits, or that they took the drugs as prescribed, they can be convicted of DUI if the government can prove that they drove impaired. Commonwealth v. Griffith, 32 A.3d 1231 (Pa. 2011).

Moreover, subsection 3802(d)(2) does not require the government to produce expert testimony that the driver’s impairment was caused by ingestion of a drug. Id. This means that, in some cases, a DUI Drug conviction can be based on a police officer’s observations of impairment. Id. The question of whether expert testimony is necessary in such cases “must be evaluated on a case-by-case basis, taking into account not just the specific drug at issue ... but also the nature and overall strength of the Commonwealth's evidence[.]” Id.

What About Marihuana DUI Charges in PA?

Understanding how marijuana is stored in the body and detected in blood testing is important because it explains how marijuana can be detected long after it is used and, most importantly, after its ability to cause impairment has ended. THC is the metabolite of marijuana. It is stored in fatty tissue. Because of where it is stored, small amounts of THC can be detected via blood testing and the amount could reflect marijuana usage days or even months before the time of testing.

Nevertheless, to prove DUI controlled substance in Pennsylvania, the government only must establish that the accused was driving with THC in their blood. In other words, the government does not need to show the driver was impaired by marijuana when they have an admissible blood test result. Instead, they can simply rely on Pennsylvania’s DUI metabolite rule set-forth in section 3802(d)(1)(iii).

Clearly, this yields unfair results. It also begs the question, should marijuana smokers, refuse to submit to a blood test when arrested for suspicion of DUI Controlled Substance? Answering this question is difficult, extremely fact specific, and must be done in hindsight since the right to consult with a lawyer does not apply to DUI testing. Refusal is also a double-edged sword. First, a legal blood test refusal will result in PennDOT suspending a driver’s license for at least one (1) year. Second, the government may be able to use the refusal as evidence during the criminal trial that the driver was DUI.

However, in certain THC cases, a blood test refusal may strengthen an accused criminal case. For example, in Commonwealth v. Gause, the defendant refused a blood draw but was convicted of DUI Controlled Substance based on an officer’s testimony of observing eyelid tremors and stating that they were associated with marijuana impairment. 164 A.3d. 532 (Pa. Super. 2017). Cross-examination revealed that the police officer neither smelled nor saw marihuana. On appeal, the Superior Court vacated the conviction and discharged the defendant while holding that a police officer's lay opinion testimony concerning the connection between eyelid tremors and marijuana impairment was inadmissible. Id. Thus, without the inadmissible eye tremor testimony, a blood test showing the presence of THC, or any suggestion of marihuana use, the evidence was legally insufficient to convict the accused.

​Of course, every case is different, and the outcome will be dependent on its specific facts and circumstances. Please call us today for a free case review.  


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Lampman Law practices criminal defense and civil rights in the Counties of: Bradford, Carbon, Clinton, Columbia, Lackawanna, Lehigh, Luzerne, Lycoming, Mifflin, Monroe, Montour, Northampton, Northumberland, Pike, Schuylkill, Snyder, Sullivan, Susquehanna, Union, Wayne, Wyoming. Lampman Law Office is located in Wilkes-Barre, Luzerne County, Pennsylvania.

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