Question

What are the penalties for marijuana possession in Pennsylvania?

Matthew M. McClenahen

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Matthew M. McClenahen

Located in State College, PA
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Marijuana is categorized as a Schedule I drug under the Pennsylvania Drug Device and Cosmetic Act, meaning that it has no legitimate medical use. It remains a Schedule I drug under both Pennsylvania and federal law, although medical marijuana is now legal in 20 states and the District of Columbia. Pennsylvania has yet to legalize marijuana for medical purposes, and as such, one cannot assert a medical necessity defense to marijuana charges in Pennsylvania.

"Marijuana" is an old Mexican Spanish slang term for cannabis, which became so common by the 1930s, that it is now the most common English term for the plant, and is no longer considered slang. The Pennsylvania Drug Device and Cosmetic Act still employs the old "marihuana" spelling, rarely seen today in English outside of criminal statutes. "Marihuana" is defined in Pennsylvania as "the cannabis sativa" plant. Although much of the cannabis smoked and eaten in Pennsylvania is actually "cannabis indica" rather than "cannabis sativa," it is not a recognized defense to assert that one possessed cannabis indica rather than cannabis sativa. Both varieties of cannabis are illegal pursuant to Pennsylvania case law, despite the definition in the Drug Device and Cosmetic Act.

Marijuana offenses in Pennsylvania are divided into two major categories:

1) possession for personal use, graded as misdemeanor and 2) possession with intent to deliver (PWID), delivery or "manufacture" of marijuana, graded as a felony. Obviously, simple possession of marijuana is much less serious than possession with intent to deliver, but there can also be some heavy consequences for merely possessing marijuana for personal use.

Possession of marijuana for personal use in Pennsylvania is subdivided into two categories: "possession of a controlled substance" pursuant to 35 Pa.C.S.A. 113-780(a)(16) and "small amount of marijuana" 35 Pa.C.S.A. § 780-113(a)(31)(i). The possession of a controlled substance statute covers all illegal drugs from heroin to cannabis and everything in between. It even covers legal drugs like Adderall, in cases where the defendant lacked a valid prescription. The maximum penalty for possession of a controlled substance in Pennsylvania is 12 months incarceration and a $5,000 fine for a first offense, while a second conviction carries up to three years incarceration and a whopping $25,000 fine.

Small Amount of marijuana is defined as possessing less than 30 grams of cannabis for personal use. There are 28.5 grams in an ounce, a common unit in which marijuana is sold in the United States. The maximum penalty for possession of a small amount of marijuana in Pennsylvania is 30 days in jail and a $500 fine. By contrast, the maximum penalties for summary offenses like underage drinking, public drunkenness, disorderly conduct and criminal mischief is 90 days in jail, with maximum fines ranging from $300 to $1,000.

The charge of "drug paraphernalia" pursuant to 35 Pa.C.S.A. 113-780(a)(16) often accompanies marijuana charges. Drug paraphernalia is broadly defined as any device, which has been used or is intended to be used to introduce an illegal drug into the human body, or to store or conceal an illegal drug. Drug paraphernalia is a misdemeanor punishable by up to one year incarceration and a $2,500 fine. Due to a bizarre glitch in Pennsylvania law, the possible period of incarceration or probation for possessing a bowl, bong or vaporizer is 12 times greater than the penalty for possessing a small amount of marijuana, and the possible fine is five times greater. Those who pass drug laws have never been accused of being logically consistent.

The delivery, possession with intent to deliver or "manufacture" of "marihuana" is an ungraded felony in Pennsylvania punishable by up to five years in prison and a $15,000 fine. I do not know why, but the Drug, Device and Cosmetic Act refers to the growing of the cannabis plant as "manufacturing," rather than more linguistically correct term "cultivation." There is no weight cut-off, which elevates a simple possession charge to a possession with intent to deliver charge. It is the defendant's intended use of the cannabis, rather than the weight, that is supposed to be controlling the factor. That being said, the weight of the plant is the biggest factor law enforcement considers when deciding whether to file felony of misdemeanor charges. Even if a defendant intended to use an entire pound of marijuana for a year's worth of cooking and smoking, he is almost always going to be charged with possession with intent to deliver, based on the weight alone. Likewise, one can be charged with a felony, even for selling a mere dime bag for $10. All deliveries are felonies, regardless of weight. Additionally, growing marijuana is always a felony, even if one had absolutely no intention of selling any of it.

The Pennsylvania Sentencing Guidelines would allow for a sentence of probation for a person with no prior record, who is convicted of dealing or growing marijuana. Unfortunately, the Sentencing Guidelines are often trumped by the "school zone" mandatory minimum sentence pursuant to 18 Pa.C.S.A. § 6317. In many Pennsylvania counties, including Centre County, drug prosecutors use the school zone mandatory minimum aggressively and ruthlessly.

The school zone mandatory minimum sentence is two to four years in state prison. An offense is in a school zone if it is within 1,000 feet of the real property line of any school or within 250 feet of a playground or recreation center. A school zone is so broadly defined that just about everywhere in a town or city is part of a school zone. For example, in State College, Pennsylvania, where both Penn State and the State College are, the School District owns a lot of property and there are numerous daycare centers, meaning there are only a few tiny slivers on the map which are not in a school zone. The Centre County District Attorney's Office even takes the position that a duck pond owned by Penn State is a "school" for purposes of the school zone mandatory minimum statute.

In addition to the direct consequences, there are also harsh collateral consequences, which accompany a conviction for either possession of marijuana for personal use or delivery, possession with intent to deliver or cultivation of marijuana. PennDoT will suspend the defendant's driver's license for six months for a first conviction, one year for a second conviction and two years for a third or subsequent conviction. These periods of suspension are always served consecutively.

A person convicted of a drug possession offense is ineligible for federally subsidized student loans or financial aid, while those convicted of any other type of offense remain eligible for federally subsidized student loans and financial aid. Thus, a defendant who committed a burglary or rape may have better educational opportunities when he gets out of prison than a harmless marijuana user convicted of possessing a mere gram of cannabis. Accordingly, it is crucial to avoid a drug possession conviction at all costs.

Often times, an experienced defense attorney is able to reduce a defendant's harm in a drug case, even if there are no viable defenses. It is important to speak to a lawyer well versed in drug defense if you have been charged with or are under investigation for any drug related crime.

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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