A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

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In Commonwealth v. Hutchins, Appellant, 2012 Pa. Super. 44, 340 MDA 2011 (February 27, 2012) a panel of the Superior Court composed of Judges Donohue, Olson and Strassburger ruled on an appeal from a judgment of sentence of the Court of Common Pleas of Lebanon County.  The defendant had been convicted of driving under the influence of a controlled substance (marijuana) under 75 Pa. C.S. §3802(d)(1) and §3802(d)(2).

          On appeal, the Appellant argued that the evidence was not sufficient to convict him because the Commonwealth failed to present an expert witness regarding the causation effect between marijuana in the blood and the operation of the automobile.

          With respect to § 3802(d)(2), Judge Olson, writing for the Panel, held that the Commonwealth had to prove that, while driving the vehicle, the Appellant was under the influence of marijuana to a degree that impaired his ability to safely operate the vehicle.  Although expert testimony is not per se required, it was necessary in order to establish that the accident which occurred in this case was caused by impairment from use of marijuana found in the bloodstream. This is so because the discovery of marijuana in the bloodstream and its effect upon driving is not an issue within the knowledge of an ordinary layman.  Without expert explanation, the finding of marijuana alone failed to establish that the Appellant was under the influence of that drug at the time of the accident.

          However, under §3802(d)(1), what is prohibited is any amount of the controlled substance within an accused’s system while operating a motor vehicle.  That section does not require that a driver be impaired.  Thus, so long as any amount of a controlled substance is within the individual’s blood, the evidence will be sufficient to establish that element of the crime. 

         So there.


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