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Can Marijuana Possession for Personal Use Lead to Jail Time in Pennsylvania?

On Behalf of | Jul 24, 2013 | Uncategorized

As a criminal defense attorney in State College, Pennsylvania, where marijuana use is ubiquitous among Penn State students, I am frequently asked whether people actually get jail time for merely possessing marijuana for personal use. The simple answer is yes, it happens all the time throughout Pennsylvania, but not nearly as much as did in less enlightened times. That being said, this question requires a more thorough explanation.

Pursuant to the Pennsylvania Drug, Device and Cosmetic Act, the maximum penalty for possessing less than 30 grams of cannabis is 30 days in jail and a $500 fine, while the maximum penalty for more than 30 grams of cannabis for personal use is up to one year incarceration and a $5,000 fine for a first offense, and up to three years in prison and a $25,000 fine for a second offense. The maximum penalty for drug paraphernalia is one year in jail and a $2,500 fine. The Pennsylvania sentencing guidelines call for probation rather than jail for a first time offender convicted of possessing a small amount of marijuana or drug paraphernalia, and, in fact, many first time offenders will receive either ARD or probation without verdict, which could ultimately allow them to escape with no criminal record.

So how does anyone end up in jail for merely possessing a few grams of ganja and a bong? Does it only happen in counties where the district attorney and judges are the reincarnations of Harry J. Anslinger or J. Edgar Hoover? Well, not necessarily. There are several common scenarios in which a marijuana user goes to jail.

In the first scenario, the defendant is committed to the county jail following arraignment before a magisterial district judge shortly after arrest. This will occur if the defendant has no fixed address where he can receive notice of future court dates by mail. It also may happen if the defendant has no ties to the community. On rare occasions, people wind up in Centre County Correctional Facility on small amount of marijuana and drug paraphernalia charges arising from traffic stops by the State Police on Route 80. Usually, out-of-towners will be released on lowered bail at the time of their preliminary hearing. Here in Centre County, people receive a prompt preliminary hearing, but in some counties, a defendant could sit in jail for three months before a magisterial district judge determines whether there is sufficient evidence to substantiate the charges!

In a more common scenario, the marijuana defendant is accepted onto the ARD program, but then ends up violating ARD. Some counties require active supervision for ARD defendants, so the ARD defendant has a chance to fail drugs tests, which is easy to do, because marijuana metabolites stay in the body anywhere from five to 50 days. Other times, the ARD defendant skips probation appointments, fails to complete court-ordered community service, fails to complete drug counseling or fails to make payments towards his court costs and ARD fees. And in yet other cases, the defendant is charged with a new crime while on ARD. No matter how a defendant violates ARD conditions, he can expect removal from the ARD program. This puts the defendant back to square one, where he has a choice between proceeding to trial or pleading guilty. As most defendants have no viable defense, the defendant who violates ARD will usually plead guilty and be sentenced to probation.

When you violate regular probation, as opposed to ARD probation, the consequences are much more severe. Typically, a defendant who violates probation will be re-sentenced to a period of incarceration. The defendant who is convicted of a new criminal offense while on probation can usually expect a harsher sentence than a defendant who commits “technical violations,” like failed drug tests or missed probation appointments. So that is the typical path for a defendant who winds up in jail for committing no crime other than breaking the marijuana prohibition laws.

Unfortunately, I have seen marijuana users end up in jail far too many times, and it will continue to happen until Prohibition finally ends. Quite frankly, when prohibitionists dismiss anti-prohibition arguments by arguing that only marijuana dealers, rather than mere users, go to jail, they are either incredibly ignorant or are intellectually dishonest.

Matt McClenahen is a criminal defense attorney in State College, Pennsylvania with extensive experience in defending marijuana cases. He is the only State College attorney on the NORML Legal Committee. He limits his practice to criminal defense.

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