Can you be charged with DUI in Pennsylvania for Taking Kratom?

Yes, you can.

Kratom is a plant-derived substance from Southeast Asia that can produce stimulant or opioid-like effects depending on the dose. Although kratom is currently legal in Pennsylvania and is not classified as a controlled substance, it can still impair judgment, reaction time, and motor skills. As a result, drivers may face DUI charges if law enforcement believes kratom use affected their ability to drive safely.

In a significant 2026 decision, the Pennsylvania Superior Court addressed this exact issue. In Commonwealth v. Walsh, 2026 PA Super 47, the Court confirmed that a person can be prosecuted for DUI after using kratom.

PA’s DUI Statutes for Drugs and Controlled Substances

Pennsylvania’s DUI statute for drugs is found at 75 Section 3802(d) and includes three primary categories:

Controlled Substances - 3802(d)(1): you cannot drive with any amount of a Schedule I controlled substance, a non-prescribed Schedule II or III substance, or a metabolite of either category. This applies to people who drive with Marijuana, Heroin, Cocaine, or non-prescribed medications which impair safe driving.
Drug/Combination of Drugs - 3802(d)(2): prohibits driving under the influence of a drug or combination of drugs to a degree which impairs your ability to safely drive.
Combined Influence of Drugs/Alcohol - 3802(d)(3): prohibits driving under the combined influence of drugs and alcohol to a degree which impairs your ability to safely drive, operate or be in actual physical control of the movement of a vehicle

Commonwealth v. Walsh - The Facts

In Walsh, police observed a vehicle traveling across two lanes and then swerving within a single lane. After initiating a traffic stop, officers noted several signs of impairment, including:

Pinpoint pupils
Erratic behavior and mood swings
Difficulty communicating

During the investigation, officers discovered multiple bottles of kratom—both full and empty—and a spilled liquid believed to be kratom. The driver submitted to blood testing, which revealed:

Mitragynine (the psychoactive compound in kratom), and
Caffeine

Importantly, mitragynine is not listed as a controlled substance under Pennsylvania law.

Commonwealth v. Walsh - Legal Issues

Walsh filed a Motion to Dismiss, claiming he couldn’t be prosecuted for DUI since he wasn’t under the influence of a Controlled Substance. The issue in Walsh was as follows: do the terms “drug” and “controlled substance” mean the same thing or have different meanings under the DUI statute. The Defendant argued that the terms mean the same thing, and that you can only be prosecuted for DUI for ingesting a controlled substance. The Commonwealth argued that the terms have very different meanings, and that a person can be prosecuted for ingesting a substance that causes impairment even if it is not defined as a controlled substance.

Section 780-102 of the Pennsylvania Controlled Substances, Drug, Device, and Cosmetic Act define the terms as follows:

A “drug” includes any substance (other than food) intended to affect the body
A “controlled substance” is a drug specifically listed in Schedules I–V

The Superior Court relied upon the case of Commonwealth v. Roser, 914 A.2d 447 (Pa. Super. 2006). In Roser, the Commonwealth was attempting to convict him of DUI based upon the consumption of alcohol. In his defense, Roser testified that his impairment was caused his consumption of bug tar and gasoline in a failed suicide attempt. The Commonwealth then amended his charges to include a count of Driving Under the Influence of a Drug under Sections 3802(d)(2) and (d)(3). The court in Roser defined the term “drug” as outlined in 35 P.S. § 780-102: any substance, other than food, that is intended to affect the function of the human body.

Walsh Holding: You can be prosecuted for DUI for non-controlled substances like Kratom

Ultimately, the Superior Court held that the Roser decision was correct - that the term “drug” has a different meaning than “controlled substance,” and that a person can be prosecuted for DUI for ingesting any substance, other than food, that is intended to affect the function of the human body.

The takeaway is clear: You can be charged with DUI in Pennsylvania for using kratom—or any substance—that impairs your ability to drive safely. The law focuses on impairment, not just whether the substance is illegal.

Facing a DUI Charge Involving Kratom?

If you’ve been charged with DUI involving Kratom or another substance, the law is evolving. We anticipate that Kratom will be added to the Controlled Substances list in the future.

If you’re facing charges for a drug related DUI, please contact the Pittsburgh DUI Lawyers at the Zuckerman Law Firm LLC for a free consultation: 412-447-5580