Com. v. Bixler, B. ( 2022 )

J-A01047-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRANDON LEE BIXLER :
:
Appellant : No. 680 MDA 2021
Appeal from the Judgment of Sentence Entered May 20, 2021
In the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0001540-2020
BEFORE: LAZARUS, J., NICHOLS, J., and KING, J.
JUDGMENT ORDER BY KING, J.: FILED: APRIL 26, 2022
Appellant, Brandon Lee Bixler, appeals from the judgment of sentence
entered in the Adams County Court of Common Pleas, following his stipulated
bench trial convictions for four counts of driving under the influence (“DUI”),
and one count each of driving on right side of roadway, driving on roadways
laned for traffic, driving vehicle at safe speed, and careless driving. 1 We
affirm.
The relevant facts and procedural history of this case are as follows. On
August 19, 2020, police pulled over Appellant’s vehicle for speeding and other
motor vehicle violations. The officer immediately smelled an odor of
marijuana, and Appellant admitted to having smoked marijuana the day
____________________________________________
1See 75 Pa.C.S.A. §§ 3802(d)(1)(i), (d)(1)(ii), (d)(1)(iii), (d)(2), 3301(a),
3309(1), 3361, and 3714(a), respectively.
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before and produced a valid medical marijuana card. The Commonwealth
subsequently charged Appellant with the above-mentioned offenses.
On February 18, 2021, Appellant filed an omnibus pre-trial motion
seeking to dismiss the DUI charges at Counts 1 and 3 of the criminal
information, which alleged violations under 75 Pa.C.S.A. §§ 3802(d)(1)(i)
(prohibiting individual from driving, operating, or being in actual physical
control of movement of vehicle where individual’s blood has any amount of
Schedule I controlled substance) and 3802(d)(1)(iii) (prohibiting individual
from driving, operating, or being in actual physical control of movement of
vehicle where individual’s blood has any amount of metabolite of Schedule I
controlled substance). Appellant argued, inter alia, that because he possessed
a valid medical marijuana card, medical marijuana could not be considered a
Schedule I controlled substance.
The court denied Appellant’s motion on March 11, 2021. Appellant
proceeded to a stipulated bench trial on May 20, 2021, and the court convicted
Appellant of all offenses. The court sentenced Appellant that day to an
aggregate 72 hours to six months’ imprisonment, with credit for time served,
and immediate parole. Appellant timely appealed on June 2, 2021. The next
day, the court ordered Appellant to file a concise statement pursuant to
Pa.R.A.P. 1925(b). Appellant timely complied on June 24, 2021.
On appeal, Appellant asks: “Did the [trial] court err in determining that
Appellant’s valid prescription for medical marijuana, and the legal ingestion
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thereof, did not prevent prosecution under Sections 3802(d)(1)(i) and
3802(d)(1)(iii) of the Vehicle Code?” (Appellant’s Brief at 4).
During the pendency of this appeal, this Court issued its decision in
Commonwealth v. Stone, No. 828 WDA 2020, 2022 PA Super 65 (Pa.Super.
filed Apr. 12, 2022) (en banc), which is dispositive of Appellant’s issue. In
Stone, this Court addressed whether medical marijuana is a Schedule I
controlled substance under Pennsylvania law. This Court observed that, as
referenced in the DUI statute, the list of Schedule I controlled substances are
set forth in the Controlled Substance, Drug, Device, and Cosmetic Act (“CSA”)
(see 35 P.S. §§ 780-101 through 780-144), and that list currently includes
marijuana. See 35 P.S. § 780-104(1)(iv). “Despite the rapidly changing state
of the law in this area, … neither 75 Pa.C.S. § 3802(d)(1) nor 35 P.S. § 780-
104(1)(iv) make a distinction between medical and non-medical marijuana.”
Stone, supra at 12.
Significantly, the Stone Court noted that while the Medical Marijuana
Act (“MMA”) (see 35 P.S. §§ 1023.1.101 through 10231.2110) anticipates the
removal of marijuana from Schedule I, our General Assembly has not yet done
so. “To date, the General Assembly has not enacted legislation amending the
MMA, CSA, or the DUI statutes to remove marijuana from its Schedule I
designation under state law.” Stone, supra at 13. Therefore, “at the present
time, the Schedule I designation for marijuana, which includes medical
marijuana, remains in place in the Commonwealth of Pennsylvania pending
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further legislative action.” Id. at 14. Consequently, “the relevant DUI statute
specifically prohibits driving with the presence of any amount of a Schedule I
controlled substance in the driver’s blood, regardless of the driver’s status as
an authorized user.” Id.
Here, Appellant’s argument is premised on his assertion that medical
marijuana is not a Schedule I controlled substance. Based on this Court’s
decision in Stone, Appellant is not entitled to relief. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/26/2022
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