Pennsylvania DUI Attorney
Drug DUI / DAI Prosecution
In Commonwealth v. Etchison, 916 A.2d 1169 (Pa.Super.2007), the defendant consented to blood tests which revealed the presence of alcohol (.05% BAC); a subsequent drug screening indicated 53 nanograms of metabolites of cannabinoids as well. There was insufficient evidence to convict him under section 3802(d)(2) because the Commonwealth's expert witness, a toxicologist, testified on cross-examination that the presence of metabolites is not an indication of present impairment, but only that a substance was ingested sometime previously. Because the expert failed to offer an opinion that the defendant was under the influence of the substance (marijuana) at the time he drove, let alone that he was under the influence to a degree that impaired his ability to safely drive, the conviction could not stand. Marijuana, is a fat-soluble drug that can stay metabolized in the blood months after its consumption.
In order to convict under section 3208(d)(2), the Commonwealth only had to prove that the defendant was "under the influence of a drug to a degree that impairs" his or her ability to safely driver or operate a vehicle. See Commonwealth v. Collins, 810 A.2d 698 (Pa.Super.2002) (where defendant's urine sample "tested positive for phencyclidine or PCP," she was properly convicted of driving under influence of controlled substance in violation of 75 Pa.C.S.A. sec. 3731(a)(2), the predecessor of section 3802(d)(2)). Section 3802(d)(2) does not require that any amount or specific quantity of the drug be proven in order to successfully prosecute under that section.