The Sobering Reality of Cannabis Law: A Conversation with Patrick Nightingale

Interview Conducted by Jason S. Lupoi, Ph.D.

I’ve had the opportunity to get an insider’s glimpse into cannabis law and what I’ve seen might surprise some people. Of course, there are still people arrested for possessing cannabis. While more states have liberated the plant from its wrongful illegality, the fact that you could have cannabis in one state but not its neighbor harkens to a country that’s not yet united on this issue, despite the vast majority of people wanting legalized cannabis. We’re getting there, but until we all can stand unified and free to utilize this ancient plant, there is much work to be done.

Stories also abound of people getting charged with cannabis-related “offenses”, only to have to break the bank to clear their name. I know of a person who was charged with having an empty vape cart that turned out to be from a cannabidiol (CBD) product. Although the arresting officer ultimately dropped the charges minutes before the case was brought before the judge, the person had spent $40,000 battling the charges to clear their record.

In many cases, our judicial system has not educated themselves on what’s allowed from a medical cannabis, recreational cannabis, or hemp regulatory perspective. I’ve heard rumors that some prosecutors believe cannabis and medical cannabis to be two different plants. We may laugh, you and I, at things like this, but in the end, we need to educate because the consequences are quite dire.

Thankfully, there are hordes of attorneys who have dedicated their legal expertise to defend cannabis rights, educate their judicial colleagues, and stick up for the people, many of whom are just seeking a better quality of life. I recently spoke with Patrick Nightingale of PKN Law and Cannabis Legal Solutions regarding the status of cannabis law in Pennsylvania.


Jason S. Lupoi, Ph.D.: Can you comment on what challenges existed when Pennsylvania was trying to pass medical cannabis legalization?

Patrick Nightingale, Esq.: We were mostly fighting old stereotypes and prejudices against cannabis. You’ve got to remember the landscape looked A LOT different in the early 2010s than it does now. Many lawmakers were dubious because we could not show them hard evidence of medical efficacy in the form of clinical trials, etc., because of its federal Schedule I classification. A lot of evidence of medical efficacy was anecdotal. And, simply stated, it was hard to gain any traction with the Republican majorities in the House and Senate, such as when Republican Governor Tom Corbett promised to veto any medical bill as he believed cannabis to be “a gateway drug.” This, of course, made no sense because we were arguing that cannabis should be a treatment alternative to opioids.

JSL: You once said at a conference circa 2018 that 75% of police officers did not know that dry leaf was legal in Pennsylvania. Has this changed? Is there resistance on behalf of the judicial system to evolve? How can those making arrests not know the law?

PN: Yes – I believe now that law enforcement is pretty well versed in our medical cannabis program. They know flower is legal, that medical cannabis must be kept in its original dispensary packaging, and they know that smoking medical cannabis is not permitted. I just had a DUI case where the police returned the medical cannabis to the patient despite also charging him with a controlled substances DUI. And, by and large, I believe they know that paraphernalia is legal, though a grinder could be hit or miss. A grinder with papers or a blunt wrapper will be illegal paraphernalia if the officer believes it’s for smoking. A grinder with a flower vaporizer, on the other hand, would be legal paraphernalia.

The Courts know that a medical cannabis patient under supervision is permitted to use medical cannabis, though some judges are skeptical as to whether the patient is in compliance with the medical cannabis program.

JSL: What about the other spokes on the legal wheel, the DAs and judges? Have you seen a willingness to better understand cannabis, the medical cannabis program, and federally legalized hemp?

PN: To be honest, cannabis cases are a fraction of the criminal cases that come through the Courts. I’d say prosecutors and judges are interested in learning about cannabis in general. Some think its CBD only, for example. No one seems to care about hemp because, simply stated, no one is being arrested for it since it’s legal.

JSL: With Pennsylvania enacting a DUI policy that includes non-intoxicating tetrahydrocannabinol (THC) metabolites like carboxy-THC, if someone is pulled over, and asked if they have a medical cannabis card, what should they say? How can a DUI be issued if the state has not provided any legal definition of what impairment means?

PN: I tell every patient to never reveal medical cannabis patient status to a law enforcement officer during a traffic stop. That officer knows that there will at least be carboxy-THC. Under current PA Controlled Substance DUI law, the Commonwealth is not required to prove impairment. The presence of non-psychoactive metabolites is sufficient for a DUI conviction. That’s why we’re really hoping Senate Bill 167 makes it to the Governor’s desk as it would require proof of actual impairment as is required for a prescription narcotic.


JSL: Can you talk about PA SB 749? What would this mean for employees with medical cannabis cards? In your legal opinion, could this set a precedent for other states?

PN: I’m not an employment lawyer, but SB 749 is very hostile to patient employees. The definition of a safety sensitive position is very broad and could, in my opinion, ensnare a laborer at a job site where someone is using a power drill. Other states are moving in the direction of requiring workers’ compensation to cover the cost of cannabis while SB 749 would do just the opposite.

JSL: Our content theme in July is “achieving independence from Schedule I”. Do you think descheduling cannabis is even on the radar of federal governmental officials? In the face of the LaGuardia and Shafer reports, a patent on cannabinoids as neuroprotectants by the Dept of Health and Human Services, a federal medical cannabis program, 75+% statewide medical legalization, etc., how can we be expected to take what is handed down by the federal government seriously, that cannabis fits the definition of schedule I?

PN: And yet the Drug Enforcement Agency doubles down on Schedule I classification and federal courts are unwilling to accept any constitutional challenges to Schedule I classification. I honestly thought that, with so many state medical programs, it would force rescheduling cannabis at the very least.


JSL: If you could point to one positive take away from your legal experience in the PA cannabis industry, and one negative take away, what might they be?

PN: It’s been really rewarding to have helped pass medical cannabis legislation and to know that over 500,000 Pennsylvanians are active participants. On the other hand, it was very disappointing that the limited number of licenses cut off a lot of opportunities and consolidated economic opportunities and collateral opportunities, such as legal services, in the hands of a very small group, relatively speaking.


JSL: The times are evolving, and I’d like to think that those human beings in the judicial system, each manufacturing their own cannabinoids with their own endocannabinoid systems like you and me, will ultimately come to learn that there is much medicinal merit to cannabis, and that what’s been proselytized by our government over the last 80+ years has been nothing more than a big, fat, egg-in-the-frying pan fairytale.

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Patrick Nightingale

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