You’ve probably seen them by now — the little brown bottles at the gas station checkout, the energy shots in the cooler at the smoke shop, the canned drinks with names like “Kratom King” or “Happy Hippo” stacked next to the Red Bulls. Kratom-based drinks have exploded in popularity over the last few years, marketed as a natural energy booster, a mood enhancer, and even an opioid-withdrawal aid. They’re legal. They’re everywhere. And until last week, it was genuinely unclear whether drinking one before you got behind the wheel could land you in DUI territory in Pennsylvania.
A Pennsylvania Superior Court decision — Commonwealth v. Walsh, 2026 PA Super 47 — answers that question directly. And the answer is: yes, it can.
What the DUI Statute Actually Says
To understand Walsh, you need to understand how Pennsylvania’s DUI law is structured. Most people think of DUI as drunk driving, but the statute — found at 75 Pa.C.S. § 3802 — actually covers several different kinds of impaired driving, organized into subsections.
Subsection (d) carries the heading “Controlled Substances” and has three parts relevant here. Subsection (d)(1) is fairly straightforward: you can’t drive if there’s any amount of a Schedule I, II, or III controlled substance (or its metabolite) in your blood. Think heroin, cocaine, unprescribed Xanax — the classic controlled substances.
Subsection (d)(2) is written differently. It says you can’t drive if you are “under the influence of a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive, operate or be in actual physical control of the movement of the vehicle.” No mention of a controlled substance. Just “a drug.”
The question in Walsh was whether “a drug” in subsection (d)(2) means the same thing as “a controlled substance” in subsection (d)(1), or whether it means something broader.
The Facts of the Case
Edward Walsh was pulled over in Delaware County in October 2023. The arresting officer observed some things that raised red flags: Walsh’s car was occupying two lanes and swerving within a single lane. When the officer made contact with Walsh, he noticed constricted pupils (notable given the low-light environment), irritability and agitation, exaggerated reflexes, and difficulty speaking. Walsh refused to participate in field sobriety testing.
The officer also found numerous bottles of kratom on the driver’s side floorboard — some open, some not.
Walsh was taken to a hospital where his blood was drawn. The results came back with two substances present: mitragynine — the primary psychoactive compound in kratom — and caffeine. No controlled substances of any kind.
At a preliminary hearing, a magisterial district judge found the Commonwealth had established enough to proceed to trial. Walsh then filed a motion in the Court of Common Pleas to dismiss the DUI charge, arguing that because kratom and caffeine are not controlled substances, the Commonwealth could never satisfy the elements of the offense.
The trial court agreed. The DUI charge was dismissed.
The Commonwealth appealed.
A Preliminary Hearing Primer
Before getting to the Superior Court’s analysis, it’s worth pausing on what a preliminary hearing is and what it isn’t — because that framing matters here.
A preliminary hearing is not a trial. It’s a gatekeeping function. Its purpose is to protect a person from being held to answer for a crime when there isn’t at least a baseline of evidence that the crime occurred and that they’re the one who committed it. The standard is called a prima facie case — a Latin phrase that essentially means “on its face.” The Commonwealth doesn’t have to prove guilt beyond a reasonable doubt. It just has to show enough evidence that, taken in the light most favorable to the government, a jury could find the defendant guilty.
At this stage, the weight and credibility of evidence don’t factor in. All the Commonwealth needs to do is check the boxes on the elements of the offense.
When a defendant believes the Commonwealth hasn’t done even that, they can file a petition for what’s called a writ of habeas corpus. That’s the legal mechanism for challenging whether a case should proceed to trial at all. (Walsh’s lawyer called it a “Motion to Quash the Bills of Information,” which is technically the wrong label — but the Superior Court noted the substance was identical and treated it accordingly.)
The Core Legal Question: Is “Drug” the Same as “Controlled Substance”?
Walsh’s argument was elegant in its simplicity. He pointed to the language of (d)(2), which uses the word “drug,” and cited two cases — Commonwealth v. Griffith, 32 A.3d 1231 (Pa. 2011), and Commonwealth v. Spence, 290 A.3d 301 (Pa. Super. 2023) — which both described the elements of a (d)(2) offense as requiring proof the defendant was under the influence of a “controlled substance.” Because kratom isn’t a controlled substance, Walsh argued, the Commonwealth couldn’t satisfy the second element. Case closed.
The Superior Court didn’t buy it.
The problem with Walsh’s argument is that Griffith and Spence weren’t dealing with non-controlled substances at all. In Griffith, the defendant had Diazepam and Nordiazepam in her blood — both controlled substances. In Spence, the substance was marijuana — also a controlled substance. When those courts said “controlled substance,” they were describing the facts of their cases, not making a ruling that (d)(2) could never reach anything else. Their use of that term was incidental, not definitional.
The Superior Court called this out directly. In Griffith, the Pennsylvania Supreme Court actually used the term “drug” when discussing subsection (d)(2), reserving the phrase “controlled substance” for subsection (d)(1). The language wasn’t accidental. It was the legislature’s language, and Griffith faithfully tracked it.
The court also leaned on a 2006 decision, Commonwealth v. Roser, 914 A.2d 447, which involved a defendant who had ingested gasoline and bug spray in a suicide attempt before getting behind the wheel. Clearly not controlled substances. Yet the Roser court upheld a (d)(2) conviction and affirmed the trial court’s jury instruction defining “drugs” as “any substance, other than food, that is intended to affect the function of the human body.” That definition comes directly from the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act at 35 P.S. § 780-102 — which separately defines “drug” and “controlled substance” as distinct terms.
The textual argument seals it. The legislature used both terms in the same section of the DUI statute. When it wanted to limit a subsection to controlled substances, it said so — as it did in (d)(1). When it used the broader term “drug” in (d)(2), that choice means something. Courts don’t assume the legislature used two different words to mean the same thing.
Walsh Conceded the Key Point
Here’s the detail that makes this case straightforward on its facts, even if the legal question was genuinely contested: Walsh’s own lawyer, at the habeas hearing, conceded that kratom is a drug. Counsel told the court: “So the only way that the Commonwealth can show their case is through [proving a] drug or combination of drugs, which again, by the definition of drug or combination of drugs, kratom is a drug, caffeine is a drug.”
That concession mattered enormously. Walsh’s only challenge was to the “controlled substance” element — and the court just held that element doesn’t exist. With that challenge off the table, and no other challenge raised to the evidence, Walsh’s petition should have been denied. The Superior Court reversed the dismissal of the DUI charge and remanded the case for further proceedings.
What the Trial Court Wanted to Do — and Why the Superior Court Wouldn’t Go There
The opinion includes a fascinating subplot. The trial judge who inherited the case after reassignment — Judge Krull — filed an opinion urging the Superior Court to affirm the dismissal on two alternative grounds, even though neither had been raised by Walsh.
First, she argued Officer Kelso’s testimony was insufficient to establish a causal link between Walsh’s kratom use and his erratic driving, because the record didn’t reflect his years of service, specialized training, or drug interdiction experience.
Second — and more strikingly — she concluded the DUI statute might be unconstitutionally vague as applied to kratom, because a person of ordinary intelligence wouldn’t necessarily know that drinking a kratom beverage could expose them to DUI prosecution.
The Superior Court declined both paths. On the sufficiency argument, the court rightly noted that weight and credibility don’t factor in at the prima facie stage — and more fundamentally, Walsh never raised that argument below. On the constitutional question, the court cited a bedrock principle: Pennsylvania appellate courts don’t raise constitutional issues that weren’t preserved in the trial court, and they certainly don’t raise them on their own. Those issues are waived, and the Superior Court had no business reaching them.
That said, I don’t think Judge Krull’s instincts were entirely off-base. There’s a real and unresolved question lurking in this case: what is the standard for proving that a non-traditional drug caused impairment? We know what qualified drug recognition experts do with controlled substances. We know what blood test threshold levels mean in context. But kratom? Caffeine? The expert testimony framework for those substances is far less developed. That question didn’t have to be answered in Walsh — and wasn’t — but defense lawyers handling these cases in the future should be prepared to push hard on causation.
What This Means If You’re Drinking Kratom Products
Here’s the practical reality that anyone buying those bottled kratom drinks at the gas station needs to understand.
Kratom produces opioid- and stimulant-like effects. Its primary active compound, mitragynine, binds to opioid receptors. It can cause sedation, altered perception, and slowed reaction time at higher doses — and a jittery, agitated, stimulant-type response at lower doses. The effects vary by dose, individual, and formulation. None of that is conducive to safe driving.
And now, unambiguously, those effects can form the basis of a DUI charge in Pennsylvania. The substance doesn’t have to appear on any schedule. It doesn’t have to be illegal. It just has to be a “drug” — meaning a substance intended to affect the structure or function of the human body — and it has to impair your ability to drive safely.
Kratom clears that bar. So does caffeine, theoretically, though the threshold for caffeine impairment would be a much harder case to make.
The takeaway for ordinary people is simple: don’t assume that “legal” means “safe to drive on.” That’s true of kratom. It’s true of many over-the-counter medications. It’s true of certain herbal supplements. If a substance affects how your brain and body function, Pennsylvania law can treat it as the basis for a DUI.