Drug Offenses

There is a broad range of drug related offenses and an equally broad range of penalties associated with those offenses. The severity of the offense and the corresponding penalty for conviction depends on what type of drug is involved, the quantity and what activity an individual is alleged to have been engaged in involving the drug; was the person charged with simply possessing it or were they charged with manufacture or distribution.

The criminal law surrounding possession of marijuana is in flux in the United States. It is easy to be confused about where it is legal and what penalties are faced for being caught with some “weed.”

Is it legal to possess marijuana in Pennsylvania?

No. Being caught in possession of 30 grams or less of marijuana constitutes a misdemeanor which carries a penalty of 30 days in jail and/or a $500 fine. If you have more than 30 grams, you face up to one year in jail and a $5,000 fine.

Subsequent convictions carry steeper penalties, as do possessing marijuana intending to sell it to others. An experienced attorney can help ensure that you are not charged and convicted with the more serious crime of distributing marijuana.

Previously, an offender convicted of marijuana possession would automatically lose his or her driver’s license for at least six months. However, earlier this year the state legislature passed House Bill 163 which repealed this automatic driver’s license suspension provision.

Be aware, however, that this law is not retroactive, and therefore if you were convicted of marijuana possession prior to April 22, 2019, you still face a mandatory suspension of your driving privileges.  

Importantly, while the penalties for possessing a small amount of marijuana are not steep, the penalties for distributing drugs are, and thus it is crucial, if you are charged with drug distribution, to obtain an attorney to fight these serious allegations.

Why would the police think I was selling marijuana?

The prosecution will consider the evidence and try to assess whether you were in possession of marijuana for your personal use or were intending to sell it. Facts which could be relevant to this determination include:

• The amount of marijuana involved.
• Whether police found paraphernalia showing personal use (such as a bong or pipe) or showing distribution (such as a scale or baggies).
• Whether police found multiple cell phones or cash in close proximity to the marijuana.
• Whether surveillance has suggested that trafficking has been taking place at the residence where the marijuana was found.

I thought some cities in Pennsylvania don’t make a big deal about marijuana?

Some cities – like Harrisburg and Philadelphia — have significantly reduced the penalties associated with possessing small amounts of marijuana. In 2016, Pittsburgh’s City Council enacted a law making possession of a small amount of marijuana in the city punishable only as a summary offense, rather than a misdemeanor per state law.

Medical marijuana is legal, right?

In 2016, Pennsylvania enacted a medical marijuana program which created a structure of issuing permits to companies which both grow and distribute medical marijuana and for providing licenses to certain individuals who medically qualify for using this substance.

Qualified users must have an approved serious medical condition, be a Pennsylvania resident, and be certified by a participating doctor. A list of approved practitioners can be found here: https://www.health.pa.gov/topics/Documents/Programs/Medical%20Marijuana/DOH%20Approved%20Practitioners.pdf

Before visiting a doctor, though (which visit may not be covered by health insurance), a user should register online which requires that the patient provide proof of Pennsylvania residency. A user will be issued an identification card, which costs $50, that allows him or her to purchase medical marijuana at approved dispensaries in Pennsylvania.

Note that you do not need to obtain a background criminal check in order to register as a patient and therefore a criminal history will not bar you from obtaining a medical marijuana card.

I have a medical marijuana card, so it looks like I’m safe from prosecution!

Not so fast. If you are a student or employee, your school or workplace may have strict rules about your use of marijuana, even off of school grounds or your place of employment. You may be subjected to drug testing, and risk losing your job, ability to play sports, or ability to continue your studies.

In addition, marijuana remains a Schedule I substance under the federal Controlled Substances Act of 1970. Thus, even if you are in legal possession of medical marijuana under Pennsylvania law, you are still in violation of federal law. Federal authorities have generally not been targeting medical marijuana patients, although policies change.

It is important to steer clear of non-regulated purveyors of marijuana. Talk to an experienced criminal defense attorney who can discuss with you the relative risks you may be taking.

Finally, you remain subject to impaired driving laws. DUI law targeting alcohol consumption  looks to your blood alcohol concentration, or the amount of alcohol in your blood, an amount that generally dissipates over time.

In contrast, the law related to driving while under the influence of drugs criminalizes driving with any drugs in the motorist’s blood. Thus, a driver may have consumed marijuana several days previously, but if cannabis is detected in the motorist’s blood immediately after operating a motor vehicle, he or she can face serious criminal charges.

In other words, if there is any amount of marijuana or the metabolite of marijuana in the driver’s blood, he or she can be convicted of DUI. The police do not have to show that the motorist is impaired or “high” or cannot drive safely. Rather, all they must demonstrate is a detectable amount of controlled substances in the driver’s system.

Possession of marijuana remains a crime in Pennsylvania and an arrest can have life-changing ramifications. Call an experienced criminal defense attorney who can discuss with you your options. 

At the lower end of the spectrum “simple possession,” “small amount” and “paraphernalia” charges are certainly not as severe as felony drug manufacturing or delivery charges.

However, a conviction for these misdemeanor offenses may still have a meaningful and lasting impact on your life including an impact on your current and future employment and education. As one example, a conviction for possession of a small amount of marijuana carries with it a mandatory six-month license suspension.

Many individuals charged with drug offenses are often wrestling with addiction and may be better served drug and alcohol treatment in conjunction with their supervision or a treatment based “drug court” program rather than incarceration.

Possession with Intent to Manufacture or Deliver (PWI), Delivery and Distribution charges can carry substantial fines and penalties. Distinguished from simple possession, possession with intent requires that the person possess the drugs and that they do so with the specific intent of selling it or delivering it to another person.

Possession with Intent to Deliver (PWID)

Possession with Intent to Deliver, a crime set out at 35 Pa.Stat. 780-113(a)(30), is a serious  drug offense with severe penalties. To establish this crime, the prosecution bears the burden of showing that the accused has both (1) been in possession of  drugs and (2) intended to deliver (sell) the drugs. Possession can be proven in one of two ways. First, the prosecution may show that the accused was in “actual” possession of the drugs. This means that the accused had the drugs in a pocket, purse, backpack, or something similar. Alternatively, the prosecution may attempt to show “constructive” possession. That occurs when the accused is not actually holding the drugs, but the drugs are nearby, allowing the reasonable inference that the accused knows about the drugs and has the ability to control the contraband. For example, an accused who lives with other people may be found to be in constructive possession of drugs that are sitting out on a coffee table in the living room, shared by all the roommates. Or a driver may be found to  be in constructive possession of drugs found in the center console of a car that has other passengers in it. However, an accused likely will not be held responsible for drugs inside another person’s pocket, or stored in another adult’s bedroom.

Along with possession, to establish this crime, the government must also show an intent to deliver the drugs. This means that the prosecution must come forward with evidence that the drugs are not merely for personal use. Some evidence is likely to show that the drugs are for personal use — such as the presence of a pipe or spoon or other items commonly employed by drug users.  On the other hand, the intent to deliver may be inferred from possession of a large quantity of drugs. Items such as a scale, owe sheets, marked bills, baggies, multiple cell phones, a pocket full of cash, or drugs carefully packaged and bundled also will allow the reasonable inference that the drugs are not merely for personal use.

The prosecution must also show that the drugs in question are a “controlled substance”  within the meaning of the law. Street drugs like methamphetamines, heroin, and cocaine will easily fall within the parameters of this law, but only a skilled defense attorney will be able to ascertain whether substances like medical marijuana or a synthetic drug also allow for a prosecution under this statute.

An accused convicted of Possession with Intent to Deliver faces more serious penalties than one convicted of mere drug possession, and thus a capable and diligent attorney  will try to show, if at all possible, that an accused found with controlled substances was a mere user and not a seller. If you or someone you care about has been charged with this crime, it is imperative to immediately contact a criminal attorney who can provide a vigorous and thorough defense.

You do not have to have the drugs on you for the police to charge you with possessing them. Too often being in the car or the apartment where drugs are found results in people being charged under the theory of constructive possession. To assert this theory the government must prove beyond a reasonable doubt that even though you did not have the drugs, weapons or other contraband on your person, you had the intent and power to control those items.

Many drug cases are won or lost during the litigation of suppression motions on search and seizure issues. Did the police have a legitimate reason to stop the car or was the stop pre-textual? Was the warrant valid? Does the affidavit of probable cause stand up? Was the information received by the police reliable? If there was no warrant what was there legitimate exigent circumstances for the police to have acted without one?

If the actions of the government that led to your arrest violated your constitutional protection from unreasonable searches and seizures, the some or all of the evidence at the heart of the government’s case against you may be suppressed. The result of such an occurrence is often that the charges are reduced, withdrawn or dismissed altogether.