What are the penalties for marijuana possession in Pennsylvania?
Answered by: Matthew M. McClenahen
Located in State College, PA McClenahen Law Firm
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.What are the penalties for marijuana possession in Pennsylvania? Answered by: Matthew M. McClenahen Located in State College, PA McClenahen Law Firm Marijuana is categorized as a Schedule
Efforts to decriminalize, legalize weed in Pa. haven’t led to big drop in arrests
The legal weed industry is among the fastest-growing in the United States, according to a Marijuana Business Daily report. Veuer’s Sam Berman has the full story.
Pennsylvania’s recreational marijuana battle sits on the front line of a generational war over American cannabis laws. And as debate heats up, there seems to be some discrepancies over what you can and cannot get in trouble for in the Keystone State.
Several cities in Pennsylvania have already passed local ordinances decriminalizing marijuana — a step in the right direction if you are in favor of recent efforts to legalize recreational use.
Those cities include: Allentown, Philadelphia, Norristown, Erie, Pittsburgh, Harrisburg, York and Lancaster.
But that doesn’t mean those Pennsylvania residents can just light up on the street. If police find that eighth in your pocket, you won’t be looking at a conviction, but don’t expect to keep your stash. The penalties for possessing small amounts are typically nothing more than fines ranging from $25 to $500.
So if that’s the case, why are police still arresting hundreds of Pennsylvanians on marijuana charges?
In 2019, about 21,789 people were arrested and charged for possessing less than 30 grams of cannabis (an ounce is 28.5 grams), according to data from the Pennsylvania State Police — that’s almost an 11% decline from the 24,305 arrests made in 2018.
“Any decline is good,” said Jeffrey Riedy of the Lehigh Valley chapter of NORML, the National Organization for the Reform of Marijuana Laws. “But that’s still too many arrests. The numbers have remained too consistent over the years for a state that’s on it’s way to decriminalizing recreational use.”
Ah, that’s the kicker. The 2019 arrests are still greater than the numbers recorded in 2009 — when no city in Pennsylvania decriminalized possession of marijuana.
Not sure how to make sense of that? Here’s a look at what these decriminalization ordinances mean.
STORY CONTINUES BELOW VIDEO.
Yorkers debated the legalization of marijuana during Lieutenant Governor John Fetterman’s Legalization Listening Session on March 19, 2019. York Daily Record
If my town has an ordinance in place, does this mean marijuana is legal?
No. Not even a little bit.
Marijuana is still illegal in Pennsylvania, and the policy applies only to simple possession of amounts under an ounce of marijuana. As stated before, an ounce is 28.5 grams.
Amounts of more than an ounce can still result in criminal possession charges — that amount was chosen in an effort to separate the users from the dealers. Sounds pretty logical.
If my town has an ordinance in place, can I still be arrested for having it?
Absolutely. And, in accordance with state law, your marijuana will be confiscated.
If found in possession of a small amount of marijuana, local police still have the power to arrest if they feel they have probable cause. You can still get put in cuffs and booked into the county jail. That includes if you’re pulled over by Pennsylvania State Police while driving on an interstate within the city.
However, prosecutors may choose not to press charges when the case reaches them.
Also, don’t expect to get your weed back. It’s still illegal, remember?
Some arrests disregard local ordinances
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Some arrests seemingly disregarded the fact that several cities have adopted local ordinances and that many prosecutors are declining to take the cases, said Andy Hoover, spokesperson for the ACLU of Pennsylvania.
Former York Mayor Kim Bracey reformed marijuana prosecutions in August 2017, for instance, but police still arrested 55 people in the city for low-level possession through December. And another 156 marijuana possession arrests were made by the York City Police in 2018.
So while down from most previous years, the pot possession arrests underscore the complicated societal damage connected to marijuana legal reforms unfolding across the country, Hoover said.
Penalties for low-level marijuana possession inflict unjust harm to poor and minority communities, he said.
“It’s like the rest of the legal system,” Hoover said. “It disproportionately impacts people of color. Marijuana use is not very different across race. But it’s black Americans, black Pennsylvanians, more likely to get arrested.”
And sure, you might not be prosecuted in the end, Riedy said, but that doesn’t erase the arrest. On average, it costs a community more than $2,000 for each marijuana arrest made, he said.
“There’s a lack of communication with what these ordinances mean for local law enforcement,” said Judith Cassel, an attorney for Cannabis Law PA. “Has anybody sat down with law enforcement and said, ‘Don’t waste your time on this because there are more serious crimes out there we would like to redirect your energies and resources to?'”
In addition to time and money spent in court, the potential repercussions span everything from affecting future criminal prosecutions to immigration and deportation issues.
“Getting arrested for anything can be problematic for a person,” Hoover said. “It could affect unemployment, education, housing. There could be a huge ripple effect.”Police are still arresting hundreds of Pennsylvanians on marijuana charges despite efforts to legalize pot and the fact that prosecutors are declining to take the cases. ]]>