Minor Drug Offenses

Under the Pennsylvania drug act, there are two misdemeanor offenses that are regularly charged when an individual is found in possession of a controlled substance: Simple Possession of a Controlled Substance and Possession of Drug Paraphernalia. As explained further below, these charges typically go hand-in-hand because the bag, etc. in which controlled substances are found constitutes drug paraphernalia. So, for example, if a person is found in possession of 1g of cocaine, Pennsylvania law enforcement will typically charge them with Simple Possession of a Controlled Substance (for the cocaine) and Possession of Drug Paraphernalia (for the bag containing the cocaine).

If you have been charged with misdemeanor offenses relating to drug possession in Centre County, Pennsylvania, please give our office a call. Attorney Julian Allatt has represented countless people charged with minor drug offenses in State College and throughout central Pennsylvania. When someone is charged with a possession offense, it is important for an experienced criminal defense attorney to understand the facts and circumstances that led to the discovery of the controlled substances. In certain instances, it may be appropriate to challenge the constitutional basis for the stop or the search that led to the seizure of contraband by law enforcement. If there are no issues with the search, there are often many options for the resolution of these charges including pretrial diversionary programs such as ARD that will allow a person charged with minor drug offenses to avoid a conviction.

It is important to speak to an experienced criminal defense attorney to understand the collateral implications a conviction for these types of charges can have. For instance, under PA even a minor drug conviction will preclude you from obtaining a license to carry a firearm. 18 Pa.C.S. §6109(e)(1)(ii).

You can read in more detail about these charges below.

Simple Possession of a Controlled Substance

Simple possession is knowingly or intentionally possessing a controlled substance by a person not licensed or registered to possess said substance. This includes both “street” drugs such as cocaine, heroin, LSD, and marijuana, or prescription drugs where the individual does not have a valid prescription or doctor’s order. 35 Pa. Stat. Ann. § 780-113(a)(16).

This crime is distinct from Possession of a Small Amount of Marijuana or Possession with the Intent to Distribute (PWID) in that it could pertain to any controlled or unlawfully possessed substance and is not limited by any particular amount, but it assumes that the substance(s) possessed are intended for personal consumption and not distribution.

Simple Possession is an ungraded misdemeanor and the penalty is more severe than Possession of a Small Amount of Marijuana. Furthermore, the statute provides for increased penalties for repeat offenders:

Upon conviction for a first offense, an individual may be sentenced to imprisonment for up to one year and a fine not exceeding $5,000 or both. Upon conviction for a second offense, a person may be sentenced to imprisonment for up to three years and fine up to $25,000 or both. 35 Pa. Stat. Ann. § 780-113(b).

As with Possession of a Small Amount of Marijuana and Possession with the Intent to Distribute (PWID) a person may be charged with the possession of drugs found on his or her person, or in an area where the person had “custody or control” over the items, i.e. drugs found in a backpack in the back seat of a vehicle. Whether the drugs were actually possessed by the individual and whether the drugs were intended for personal use or for distribution presents a factual question unique to each and every case.

Where an individual is charged with Possession with the Intent to Distribute (PWID), they are without exception also charged with Simple Possession of the same substance. Put plainly, you cannot possess items with the intent to distribute them without simultaneously “simply” possessing the same items. Simple Possession is therefore considered a “lesser included offense” in Possession with the Intent to Distribute. In cases where a defendant is charged with both possession and distribution, the court will look to many factors to determine whether the drugs were intended for distribution or for personal consumption. These factors include, but are not limited to, the amount of drugs possessed, the way the drugs are packaged, whether there are any items found consistent with personal use (straws, needles, smoking materials, etc.) or in the alternative, items consistent with sale or distribution (scales, multiple cell phones, excessive cash, packaging materials, etc.), whether the individual has a history of drugs use or appears to be under the influence, etc.

In certain situations, simple possession is a clear-cut case: An individual found to be in possession of a single package containing .5g of cocaine and a straw clearly possessed the cocaine for purposes of ingesting it. In other cases, the facts may be somewhat more ambiguous. For instance, a regular cocaine user might stock up and be found in possession of 10g of cocaine. Though the cocaine was intended for personal use and was found in a single baggie, the sheer amount may give rise to the more severe charge of Possession with the Intent to Distribute. Effective representation and advocacy in these cases requires a thorough understanding of the many factors that the court and the prosecution will consider.

Possession of Drug Paraphernalia

Pennsylvania law prohibits 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. 35 Pa. Stat. Ann. § 780-113(a)(32)

While the Pennsylvania Controlled Substances, Drug, Device and Cosmetic Act goes to great lengths to define drug paraphernalia and provides an exhaustive list of prohibited uses, in the typical situation the use or intended use of the items is fairly obvious. Usually, a charge for Possession of Drug Paraphernalia stems from the possession of items used for transporting, snorting, smoking, or injecting drugs. What many people are often surprised to find, however, is that the bags used to contain a controlled substance– i.e., the baggie that contained an eighth-ounce of marijuana– is considered drug paraphernalia and can be charged and sentenced separately. See Com. v. Pitner, 928 A.2d 1104, 1108 (Pa. Super. Ct. 2007) (An individual may be charged with both possession of a controlled substance and possession of drug paraphernalia for the bag that contained the drugs). Accordingly, it is extremely common for individuals to be charged with both or Simple Possession and Possession of Drug Paraphernalia.

Possession of Drug Paraphernalia is an ungraded misdemeanor. Upon conviction, a person may be sentenced to imprisonment for up to one year and fine up to $2,500 or both. However, it is extremely important to note that a conviction for Possession of Drug Paraphernalia does not carry a driver’s license suspension. Accordingly, in a situation where the facts of a particular case are not favorable and a defendant has been charged with both drug possession and possession of paraphernalia, it is often advisable to seek a plea to the paraphernalia charge because of the lack of a driver’s license suspension and other collateral consequences about the law offices of Rehmeyer & Allatt can advise you.

The statute which criminalizes the possession of drug paraphernalia also contains a provision that provides an enhanced penalty where a defendant delivers drug paraphernalia to a person under eighteen (18) years of age who is three (3) or more years the defendant’s junior. This particular crime constitutes a misdemeanor of the second degree for which a defendant may be sentenced to pay a fine not exceeding five thousand dollars ($5,000) or to imprisonment not exceeding two (2) years, or both.

35 Pa. Stat. Ann. § 780-113(i)