While the Laws are Changing in Pennsylvania, Possession of Marijuana For Personal Use Remains a Crime.

Overshadowed by the enactment of Pennsylvania’s Medical Marijuana Act (“MMA”)in April is a bill introduce on May 17, 2016, by House Representative Ed Gainey which called for the amendment of Pennsylvania’s Controlled Substance Act, Drug, Device and Cosmetic Act, 35 P.S. 780-101 et. Seq. (“CSA”). Specifically, HB 2076 seeks to amend PA’s CSA by reducing the punishment for possession of small amounts of marijuana.

Currently, marijuana, or marihuana as spelled in PA’s CSA, remains classified as a schedule I drug. The definition of schedule I drug under PA’s CSA mirrors the definition of a Schedule I drug under the Federal Controlled Substance Act. Under Pa’s CSA. marijuana is defined as a substance with a high potential for abuse, no currently accepted medical use in the United States, and a lack of accepted safety for use under medical supervision.  The apparent conflict between the PA’s CSA and the MMA is resolved by section 2101 of the MMA which expressly states that the MMA takes precedence over PA’s CSA.

Under the PA’s CSA, the following is prohibited: (i) the possession of a small amount of marijuana only for personal use; (ii) the possession of a small amount of marijuana with the intent to distribute it but not to sell it; or (iii) the distribution of a small amount of marijuana but not for sale. For purposes of this subsection, thirty (30) grams of marijhuana or 8 grams of hashish shall be considered a small amount. 35 P.S. 780-113(a)(31).

Under PA’s CSA, any person who violates clause (31) of subsection (a) is guilty of an ungraded misdemeanor and upon conviction thereof can receive a maximum sentence of imprisonment not exceeding thirty days, or a fine not exceeding five hundred dollars ($ 500), or both. 35 P.S. 780-113(g).

According to Rep. Gainey, the proposed amendment will protect Pennsylvanians from the lifelong collateral consequences of a narcotics conviction by imposing a fine and a summary conviction for an individual possessing thirty (30) grams or less of marijuana or eight (8) grams or less of hashish. The proposed amendment would reduce the charge to a summary offense and the punishment to a fine of $100.00. Rep. Gainey believes this proposed amendment reflects the will of the people of Pennsylvania in light of the decriminalization of marijuana at the local level in the cities of Philadelphia and Pittsburgh and that decriminalization is being considered elsewhere including Harrisburg and Lancaster.

Additionally, under the Motor Vehicle Act, a person convicted of Possession of a Small Amount of Marijuana shall have their driver’s license suspended as follows:

(i) For a first offense, a period of six months from the date of the suspension

(ii) For a second offense, a period of one year from the date of the suspension

(iii) For a third and any subsequent offense thereafter, a period of two years from the date of the suspension.

75 Pa. Cons. Stat. Ann. § 1532 (C).

If the offense is reduced to a summary offense, there is no suspension of driver’s license under the Motor Vehicle Act.

Additionally, possession of a controlled substance remains prohibited under PA’s CSA. 35 P.S. 780-113(a)(16). PA’s CSA defines a “CONTROLLED SUBSTANCE” as a drug, substance, or immediate precursor included in Schedules I through V of this act and marijuana remains a Schedule I drug under Pa’s CSA. Anyone caught in possession of marijuana could be charged under subsection (a)(16) and can be found guilty of a misdemeanor, on conviction thereof, be sentenced to imprisonment not exceeding one year or to pay a fine not exceeding five thousand dollars ($ 5,000), or both.

The point is that while Pennsylvania’s laws with regards to personal possession of marijuana are changing, it remains illegal to possess marijuana for personal use with the two exceptions of the cities of Philadelphia and Pittsburgh.

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