Drug Possession FAQs
We have compiled some of the most frequently asked questions and answers on a broad range of drug possession topics. Take some time to get informed on illegal drug charges, penalties, and defenses by reading our Frequently Asked Questions.
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PA Medical Marijuana Law – Who, When, and What is Covered
On April 17, 2016, Governor Tom Wolf signed Pennsylvania’s Medical Marijuana Program into law. This makes Pennsylvania the 24thstate to adopt a Medical Marijuana Program. While the new law went into effect May 17th of this year, our Commonwealth won’t make it available through state licensed dispensaries until sometime in 2018. Until that time, only caregivers of minor children who suffer from “a serious medical condition” as defined under the law will qualify to obtain medical marijuana and transport it into the state from another jurisdiction.
Pennsylvania is now accepting “safe harbor” applications for these infirmed minors but this provision doesn’t cover adults in the Commonwealth. It’s important to under who and what is covered under the new law to avoid either a misdemeanor criminal drug charge for simple possession or a felony charge for possession with intent to deliver (PWID). While a person charged with simple possession may qualify for the ARD program along with an expungement, a person charged and convicted of felony would not qualify for either and couldn’t have their criminal record sealed.
While medical marijuana is now considered legal in Pennsylvania, there are a number of requirements for its legal consumption. To qualify for medical marijuana, a patient must have a terminal illness, suffer from cancer, HIV/AIDS or another qualified medical condition under the new law (a/k/a Act 16).
Other qualified medical illnesses or conditions include the following:
- Amyotrophic lateral sclerosis,
- Parkinson’s disease,
- Multiple sclerosis (MS),
- Inflammatory bowel disease,
- Huntington’s disease,
- Crohn’s disease,
- Post-traumatic stress disorder,
- Intractable seizures,
- Sickle cell anemia,
- damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity,
- severe chronic or intractable pain of neuropathic origin,
- or if conventional therapeutic intervention and opiate therapy is contraindicated or ineffective.
In addition to these conditions, the PA Department of Public Health can approve additional debilitating medical conditions. A patient who has a qualifying condition must, however, also obtain a doctor’s certification to enroll into the program. The doctor is only permitted to issue a certification if the physician has a valid medical license and has completed a four hour course on medical cannabis. This physician certification must state that the patient is under the doctor’s ongoing care and that the patient is likely to receive a therapeutic or palliative benefit from the medical marijuana.
Doctors aren’t permitted to receive pay from or refer patients to a marijuana business, conduct an exam at a location where marijuana is sold or have any direct or indirect economic interest in a marijuana dispensary or a cultivator. Further, doctors aren’t permitted to advertise in marijuana cultivation centers or dispensaries. Patients who qualify for medical marijuana may not do any of the following:
- Grow marijuana
- Drive under the influence of marijuana (DUI)
- Give or sell marijuana
- Possess marijuana on a school bus or on school grounds
- Use marijuana in a public place
- Smoke marijuana
- Use dry leaf or whole plant marijuana
- Utilize medical marijuana in any work place while performing dangerous activities
- Purchase food or drink infused marijuana
While Pennsylvania has legalized medical marijuana for these qualified patients, the U.S. Department of Justice technically still has the authority to enforce civil and criminal penalties against is possession and use. It is unlikely, however, that the Federal Government will bring either civil or criminal action against growers, processors, dispensaries, physicians or seriously ill individuals or caregivers as long as they abide by Pennsylvania law.
The following are acceptable forms of medical marijuana:
- Topical forms – gels, creams or ointments,
- Vaporization or nebulization,
For more information on drug crimes in Pennsylvania, I encourage you to visit my free download section, watch my videos, and continue to read my blog.
Drugs and Narcotics Crimes: When can the prosecution bring up your past in PA?
Our Pennsylvania criminal defense law firm based in Philadelphia frequently handles cases involving illegal drugs and narcotics. In these situations, may of our clients, unfortunately, have prior criminal records for possession misdemeanor and possession with the intent to deliver illegal drugs (PWID) (felony).
Normally a person’s prior criminal record and or “bad acts” aren’t admissible during a criminal trial and the Commonwealth or prosecution (assistant district attorney (ADA)) must establish beyond a reasonable doubt that a person is guilty of a particular crime for which he or she is accused. Pennsylvania Rule of Evidence 404(b), however, allows the prosecution to introduce evidence of prior bad acts which would include convictions to prove some of the relevant facts against the accused person such as:
- absence of mistake; or
This is incredibly strong evidence for the prosecution because the judge or jury will hear that a person has been involved with drugs in the past and this will seriously damage the defense’s case. It may cause the judge or jury to form a negative opinion about the accused person even though they enjoy a presumption of innocence under our state and federal constitution.
It is important to remember, however, that while Rule 404(b) does permit the admission of this evidence, the prosecution must establish a specific and logical connection between these other acts, which include criminal convictions and the crime at issue. This means that the prosecution must do more than simply state the person has been convicted of a drug crime in the past but must show that the current case grew out of or was in some way caused by the prior set of facts and circumstances. The admission of this damaging evidence for the defense is at the discretion of the trial judge and a higher court (Appellate Court) will only reverse this type of evidentiary ruling if the defense can demonstrate a “clear abuse of discretion”.
The mere fact that a person has been convicted of a drug crime, in and of itself, isn’t sufficient to make it admissible under Rule 404(b). Your criminal defense lawyer must focus on establishing a difference between your current criminal case and your prior conviction. These differences could include:
- the type of drug,
- the location,
- the type of transaction,
- the persons involved;
- the time between this case, the prior conviction or bad act, and
- the circumstances surrounding your arrest.
Remember the prosecution can’t offer the evidence to establish your criminality but rather to show something else (motive, opportunity, intent, and preparation). While Rule 404(b) focuses on prior crimes, convictions, or other bad acts Rule 404(a) is focused on the character of the defendant and other witnesses at trial. Remember that in most situations evidence of a person’s character isn’t admissible unless it is offered into evidence. While character is inadmissible either the defense or the prosecution may attempt to impeach the credibility of a witness, including the defendant under Rules 607, 608, and 609. For more information on character evidence and the admissibility of that evidence at a criminal trial I encourage you to visit my free download section and continue to read my blog.
Drugs in Pennsylvania: Possession with the Intent to Deliver (PWID) – Does the weight Matter?
Under Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act (35 P.S. Section 780-101) Possession with the Intent to Deliver (PWID – 35 P.S. Section 780-113(30)) is a felony offense in Pennsylvania and therefore much more serious than the illegal possession of a controlled substance or drug for personal use (aka knowing and intentional possession). While all PWID crimes are felonies, the severity of a criminal penalty is based on the drug or substance’s weight. Keep in mind that the prosecution must prove all elements of a criminal offense in Pennsylvania and any other jurisdiction (including federal) beyond a reasonable doubt. Unlike simple possession, the prosecution (district attorney) must prove not only actual or constructive possession of a controlled substance, narcotic, or drug but an intent to manufacture, deliver, or distribute it.
The District Attorney (prosecution) can establish the intent to distribute, deliver or manufacture element with either observed transactions or with circumstantial evidence (bags, scales, large quantity of money, other drug paraphernalia). If there aren’t observed transactions, however, the prosecution will need an expert to testify that the circumstantial evidence is indicative of an intent to distribute, deliver, or manufacture the drug. Obviously the prosecution must prove possession before it can establish an intent to deliver or distribute and readers of my previous articles understand that constructive possession is just as good as actual possession when it comes to the prosecution’s burden of proof in these cases. While the elements of a PWID charge are important, it is equally important to understand that the severity of a criminal penalty increases as the weight of the drug found within the person’s possession increases.
For example, a PWID charge for over 1,000 grams of heroin, cocaine, or any Schedule I or Schedule II controlled substance has an offense gravity score (OGS) of 13, while a PWID for these same substances with a weight of 100 – 1,000 grams has an OGS of 11. 50 – 100 grams has an OGS of 10. These different weights would expose a person to the following criminal penalties even if they had no prior criminal history in Pennsylvania:
DRUG OGS SENTENCE GUIDELINE Cocaine, Heroin,
Schedule I, II
13 60-78 months Cocaine, Heroin,
Schedule I, II
11 36-54 months Cocaine, Heroin,
Schedule I, II
10 22-36 months
As you can tell as the OGS falls, so does the person’s potential time in jail. Unlike, New Jersey, Pennsylvania doesn’t have mandatory minimum sentencing for drug offenses under the Controlled Substance, Drug, Device and Cosmetic Act, but many judges within the Commonwealth will still follow these sentencing guidelines. It’s important that if you’re charged with a PWID charge in Pennsylvania, your attorney not only look at the elements of the criminal charges but also pre-trial issues such as illegal search and seizure. If a Motion to Suppress evidence (illegal search and seizure) isn’t successful, your attorney must argue not only reasonable doubt with regards to the prosecution’s presentation of the evidence (actual vs. constructive possession) but also reasonable doubt with regards to the amount of weight at issue in the case—this can make a huge difference!
The weight of the drugs is tremendously important because it will control the amount of time a person might spend in jail following a conviction. In addition to jail, a person convicted of PWID faces a substantial find even for a first time offense. A first time offender for a PWID charge faces a maximum fine of $250,000.00 if the drug is heroin, oxycodone, methadone, or LSD and $100,000.00 fine it the drug is cocaine, crack, PCP, or methamphetamine.
For more information on drug crimes, I encourage you to read my monthly newsletter or pick up a copy of my latest book, “What Everyone Should Know about Guns, Drugs, and Defense Attorney’s in Pennsylvania”.
Not just Pot! What else is Philadelphia “Decriminalizing?”
Philadelphia is getting ready to host the Democratic National Convention in the last week of July (July 25-28). In addition to getting the City ready physically through various construction and reconstruction projects, Philadelphia City Council, and other political leaders including Mayor Jim Kenny, are looking for ways to make sure police and other public safety resources are allocated appropriately. Right now, in Philadelphia, a police officer will arrest you for any of the following crimes:
These crimes are summary offenses and account for over 10,000 crimes in the city each year. If a person fails to properly address these violations, a judge can and will issue a bench warrant which could land the person in jail and lead to additional criminal charges like contempt of court. Philadelphia’s newest proposal, however, is aimed at these low level summary offenses in an attempt to remove them from the criminal justice system in favor of a civil ordinance violation.
Just like Philadelphia’s marijuana decriminalization law, Philadelphia police will no longer arrest someone for these offenses but rather issue a citation which, if not paid, will result in a civil judgement and not criminal contempt action. As it stands right now these low level summary offenses require not only police action but court administration time and other city resources (prison, sheriff). In most situations these low level criminal offenses result in fines anyway and, in most cases, the expungement of a person’s arrest record. The City’s goal is twofold when it comes to these offenses – save resources and to improve the economy.
From an economic standpoint, even low level criminal offenses can create future employment problems for individuals because some employers will immediately eliminate a potential employee for any type of criminal offense even if the offense is a low level disorderly conduct. Many larger employers believe that criminal conduct creates potential issues down the road and there are many other applicants who don’t have this issue.
It is important to understand that the city isn’t changing the Pennsylvania’s Crimes Code; it can’t do this under Pennsylvania’s Constitution. While Philadelphia is a “class A” city, its city council can’t make laws which conflict with the laws of the Commonwealth. Like the Marijuana Decriminalization bill, Philadelphia is simply choosing not to enforce the crimes code when it comes to these low level offenses.
Criminal offenses are much more serious then civil penalties regardless of their grade (felony, misdemeanor, summary). Criminal violations often stigmatize a person as a future problem or someone who doesn’t respect authority. While civil violations can also cause problems, there is much less of a stigmatism for those matters.
I always advise consulting with an attorney even if police tell you that it’s not necessary and you are simply “wasting your money”. We should respect police officers but know that they would prefer if we chose the path of least resistance in order to make their jobs easier. The path of least resistance, however, isn’t necessarily the best path for you and for more information about criminal offenses in Pennsylvania I encourage you to read my books, subscribe to my monthly newsletter, or watch one of my videos.
Drug Conviction and Losing Your PA Driver’s License: Is there a way to avoid a suspension?
I have written previous articles about the possession, sale, and distribution of drugs and other controlled substances focused on the prosecution’s burden of proof and the elements of these offenses. A drug offense can be charged as a felony (possession with the intent to distribute – PWID) and as a misdemeanor (simple possession). A conviction for a drug offense can involve probation or jail depending on its severity. It’s important to point out that the mandatory minimum sentences for PWID are no longer constitutional in Pennsylvania.
My previous articles focus on defense strategies and pretrial motion strategies. Clients hire our law firm to defend these criminal charges in Pennsylvania but during the course of that defense we also need to consider other consequences that result from a conviction such as a license suspension. Under Section 1532 of the vehicle code (Title 75) PENNDOT will suspend the driver’s license of any person convicted of the possession, sale, or distribution of drugs in Pennsylvania. A first time offender faces a six (6) months of suspension and there is a one (1) year suspension for a second offense and two (2) year suspension for a third offense. It’s important to keep in mind that your conviction doesn’t have to pertain to a car (the sale from a car) or even driving.
A driver’s license suspension is significant and in many cases, it hurts more than a period of probation and some may argue a short jail sentence (I personally disagree with that opinion). A driver’s license suspension, however, impacts a person’s ability to earn a living and provide for their family. Section 1532 complicates a drug defense because your criminal defense lawyer must consider ways to avoid a license suspension. Normally, criminal lawyers are only focused on getting a PWID (felony) downgraded to a possession charge (misdemeanor). Obviously a complete acquittal is ideal but sometimes the defense isn’t able to overcome the evidence against an accused person.
A good criminal lawyer will know what his chances are at trial with PWID charges and possession charges. Assuming that there is no 4th amendment (illegal search and seizure) issue, your attorney must consider non-trial alternatives in cases where a person is at least going to be convicted on the drug possession misdemeanor charge. You obviously want to win at trial but your attorney must consider the strategy that is going to minimize the damage to your personal and professional life. Losing your driver’s license will no doubt negatively affect both of these areas.
Getting a not guilty on a PWID charge but a guilty on the possession charges is an example of winning the war but losing the battle—it still stings! If the DA isn’t willing to negotiate then your plan is simple—go to trial! If, however, your lawyer can effectively point out the weaknesses in the case, he may be able to negotiate a plea to possession of drug paraphernalia as opposed to Possession of the actual drug. Possession of Drug Paraphernalia is an ungraded misdemeanor. The distinction between these two criminal charges may appear slight but there is one major difference. You won’t lose your driver’s license for a drug paraphernalia charge. A plea to drug paraphernalia is therefore a great alternative if there is simply a low probability of getting an acquittal or winning a motion to suppress.
If you would like to read more about criminal defense strategies, I encourage you to visit my free resource section.