Under the Pennsylvania drug possession laws, an individual can be charged with a number of drug possession offenses in PA if he or she is in possession of drugs, drug paraphernalia, or other illegal substance classified under any of the PA Drug Schedules. Under the Pennsylvania drug possession laws, each offense is separately charged, graded differently, has unique penalties, and requires separate facts/elements to be proved by the prosecution.
The following list is by no means exhaustive of all drug-related offenses, but it provides details on three commonly charged offenses under Pennsylvania drug possession laws and information on how an experienced attorney could defend against them.
1. Possession of a Controlled Substance (35 P.S. § 780-113(a)(16)) Offense – Pennsylvania drug possession laws define possession of a controlled substance as “knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act.”
Unique Issues – Pennsylvania drug possession charges usually apply if an individual is found carrying marijuana, cocaine, methamphetamine, or other illegal narcotics; however, possession charges are possible for certain legally available drugs (i.e., prescription medications) if they are possessed without a proper prescription.
Penalties – 1st Offense – misdemeanor, up to 1 year in jail, maximum $5,000 fine, or both; Subsequent Offense – misdemeanor, up to 3 years in jail, maximum $25,000 fine, or both.
2. Possession with Intent to Deliver (35 P.S. § 780-113(a)(30)) Offense – Possession with Intent to Deliver (PWID) is defined as the “manufacture, delivery, or possession with the intent to manufacture or deliver a controlled substance by a person not registered or licensed by the appropriate State Board; or, creating, delivering, or possession with intent to deliver a counterfeit controlled substance.”
Unique Issues – The primary difference between a drug possession charge and a charge of Possession with Intent to Deliver is a determination of whether the controlled substance is for personal use or for distribution. This determination is typically based on the physical weight of the drugs involved, whether the drugs were packaged, and whether there was a large amount of cash found with the drugs, as well as other additional factors.
Penalties – The penalties for PWID under Pennsylvania drug possession laws vary greatly depending on the specific drug or drugs in question, as well as an individual’s prior criminal record and the facts of the particular case. Penalties can range from misdemeanor charges with a 1 year maximum prison sentence to felony charges with up to 15 years in jail, up to a $250,000 fine, or both. Learn more about the penalties for PWID under Pennsylvania drug possession laws.
3. Possession of Drug Paraphernalia (35 P.S. § 780-113(a)(32)) Offense – Possession of drug paraphernalia is defined as “the use of, or possession with intent to use, drug paraphernalia for the purpose of planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packing, repacking, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of this act.” Pennsylvania drug possession laws apply to pipes, needles, scales, bongs, grinders or rolling papers.
Unique Issues – Anyone who is convicted of delivering drug paraphernalia to a minor (under the age of 18) who is at least three years younger than the alleged offender can be convicted of an additional misdemeanor of the second degree, which is separately punishable by a fine up to $5,000, imprisonment of up to two years, or both.
Penalties – Misdemeanor offense, up to 1 year in jail, maximum $2,500 fine, or both. Additional penalties will apply if the offender is convicted of delivering such paraphernalia to a minor, as described above.
Pennsylvania Drug Possession Defenses
While each of the above offenses can be charged separately, there are a number of criminal defenses that may be utilized to effectively defend against them with the help of an experienced attorney:
1. An Illegal Stop, Detention, or Search – Evidence of drug and/or paraphernalia possession is only usable against an individual if the police discovered the evidence in a legal manner. If police make an illegal stop, search, or detainment of an individual, any evidence discovered during such time may be suppressed as a violation of the suspect’s Constitutional rights. For example, if an individual’s home is searched by police without a proper warrant (outside of exigent circumstances such as where people are in imminent danger, evidence may be destroyed, or a suspect may escape), a skilled attorney could argue that the individual’s Fourth Amendment protections against unreasonable searches and seizures was violated and that any evidence of drug or paraphernalia possession should be suppressed.
2. Invalid or Deficient Search Warrant – While similar to the above example of a home being searched withouta warrant, evidence may also be suppressed based on an invalid or deficient warrant. An experienced attorney can challenge the validity of a warrant and for a number of reasons, including:
a. A lack of probable cause;
b. Information used to get the warrant was false, incomplete, not specific enough, or misleading;
c. The warrant was obtained primarily on information provided by an unreliable source;
d. During the search, the police exceeded the “scope” of the search the warrant;
e. The warrant was “stale” (the warrant was based on old information, or was not executed within the proper time period after it was signed by a Judge).
3. Lack of Possession – In order to be convicted under any of the above possession charges, there must be evidence that an individual possessed the drugs or paraphernalia. Without proving possession beyond a reasonable doubt, there can be no conviction of possession. There are two types of possession that can be defended against:
a. Actual Possession – When drugs and/or paraphernalia are found directly on an individual, most likely in a pocket or purse. Assuming the search was legal, it’s difficult to argue that it was not in his or her actual possession, however, if charged with Possession of a Controlled Substance, there is a requirement that the individual “knowingly or intentionally” possess the controlled substance. Depending on the facts of the case, an attorney may argue that he or she was not aware that the drugs were in their possession or that it was not intentional.
b. Constructive Possession – Where drugs and/or paraphernalia are not found directly on an individual, but found nearby, such as a glove box or bedroom drawer, the prosecution must prove three elements to establish “constructive” possession: the individual must be aware of the presence and illegal nature of the controlled substances, the item was in fact a controlled substance, and the individual had the intent to take control of the drug/paraphernalia and was able to take control. Merely being present at a house or place where drugs are hidden is never enough, by itself, to prove constructive possession and each element must be proved beyond a reasonable doubt.
Pennsylvania Drug Possession Lawyers
For over 10 years, the experienced attorneys at The Martin Law Firm have been representing clients facing alleged violations of the Pennsylvania drug possession laws in Montgomery County, PA as well as the surrounding areas. Our attorneys understand how serious Pennsylvania drug possession charges are and will work hard to achieve the best possible result for you. Contact The Martin Law Firm today at 215-646-3980.