The basics of drug possession charges and penalties in PA.
Updated August 14, 2023
All states, including Pennsylvania, regulate and control the possession of controlled substances, though each state differs in its exact definitions and the penalties for drug possession.
This article reviews Pennsylvania's classifications of controlled substances and the penalties for illegal possession for personal use.
How Does Pennsylvania Classify Controlled Substances?
Pennsylvania divides controlled substances into five schedules—Schedules I to V. Schedule I drugs are considered the most dangerous and highly addictive, while Schedule V drugs are the least dangerous and the least addictive. Below are some examples of drugs placed into each schedule.
Schedule I drugs include heroin, MDMA, LSD, mescaline, psilocybin, and marihuana.
Schedule II drugs include opium, codeine, cocaine, fentanyl, phencyclidine, and meth.
Schedule III drugs include ketamine, buprenorphine, and anabolic steroids.
Schedule IV drugs include barbital, phenobarbital, and tramadol.
Schedule V drugs include cough suppressants and other therapeutic medicines containing low doses of codeine or other narcotics.
(35 Pa. Stat. § 780-104 (2023).)
Penalties for Illegal Drug Possession in Pennsylvania
Possession offenses (unlike sale offenses) for controlled substances all carry the same general penalty regardless of their schedules, except for GHB and small amounts of marijuana. The penalties are based on whether the defendant is a first-time or a repeat drug offender.
Penalties for Illegal Possession of Controlled Substances
Below are the punishments for first-time and subsequent offenses.
First conviction. A first conviction for illegal drug possession is a misdemeanor, punishable by up to one year in jail and a $5,000 fine.
Subsequent conviction. A second or subsequent conviction under the Controlled Substance carries up to three years' imprisonment and a $25,000 fine. This enhanced penalty applies to a person facing drug possession charges who has any prior drug convictions (not just possession).
Penalties for Possession of Small Amounts of Marihuana
A person who illegally possesses a small amount of marihuana for personal use commits a misdemeanor punishable by up to 30 days in jail and a $500 fine. The law defines a small amount as 30 grams or less of marihuana or 8 grams or less of hashish.
Penalties for Possession of GHB
Harsher penalties apply for possession of gamma-hydroxybutyric acid (GHB). A person convicted of this crime faces a 15-year felony and a $250,000 fine.
(35 Pa. Stat. § 780-113 (2023).)
Will You Go to Jail for Illegal Drug Possession in Pennsylvania?
It depends. For nonviolent offenses, a person who suffers from a substance abuse disorder could qualify for a prosecution or sentencing alternative, such as Accelerated Rehabilitation Disposition (ARD), section 18 treatment, probation without verdict, or drug court.
ARD
Some Pennsylvania counties offer ARD—a form of pretrial diversion—for drug possession offenses. Each county sets its own rules regarding acceptance and program requirements. The Commonwealth attorney ultimately makes the call on who to accept into ARD. A defendant who successfully completes the program may have their criminal charges dismissed. An ARD program might require the defendant to participate in drug treatment, stay employed, and not commit other crimes, among other conditions. (Pa. R. Crim. Proc. 312 (2023).)
Section 18 or Disposition in Lieu of Trial
A Commonwealth attorney may also agree to hold off on prosecuting charges under what's called "section 18" or "disposition in lieu of trial." This program applies only to nonviolent drug charges, and both the Commonwealth attorney and judge must sign off on the defendant's participation. If the defendant successfully completes the treatment program, the criminal charges are automatically dismissed. (35 Pa. Stat. § 780-118 (2023).)
Section 17 or Probation Without Verdict
For first-time offenders (who've never done ARD for drug charges), "probation without verdict" or "section 17" can be another way to avoid jail time and a conviction. Under this option, the judge holds off on entering a defendant's guilty or no contest plea, so long as the defendant completes all of their probation terms. Successful completion means the judge will discharge and dismiss the proceedings without a conviction. Probation without verdict is a one-time deal. (35 Pa. Stat. § 780-117 (2023).)
Drug Court
Drug courts provide intensive supervision by a team of professionals, including the judge, Commonwealth and defense attorneys, probation, and a treatment provider. This option doesn't always avoid jail time. Drug courts are highly structured programs that hold defendants accountable for their actions. Drug courts generally provide both incentives for compliance (such as fewer court appearances) and sanctions for noncompliance (which might be a few days in jail).
Defenses to Drug Possession Charges in Pennsylvania
In drug possession cases, a defense attorney may raise several arguments to challenge the prosecution's case. The Commonwealth attorney must prove the case beyond a reasonable doubt.
Lack of Knowledge or Possession
Drug possession crimes generally require proof that the defendant had actual or constructive possession of the drugs and knew what the drugs were. If the prosecution can't prove the defendant possessed the drug or knew what it really was, this may lead a jury to acquit. For example, a defendant might argue they thought the white pills were aspirin or that they had no idea how the drugs got into their gym bag.
Illegal Search or Seizure
Another common defense strategy in drug possession cases is to challenge the legality of the search that led to finding the drugs. If police conducted an illegal search, the evidence (the drugs) typically must be excluded. Without evidence of the drugs, the prosecution's case might fall apart.
Good Samaritan or 911 Immunity Defense
Pennsylvania law provides immunity from drug possession charges to Good Samaritans who seek help for a drug overdose. These protections apply to the overdose patient and the person reporting the overdose. To fall under these protections, a person who reports the overdose must remain on the scene and cooperate with authorities. (35 Pa. Stat. § 780-113.7 (2023).)
Talk to an Attorney
If you are charged with drug possession, contact a local criminal defense attorney. Possession charges might seem minor, but a criminal record of drug charges can hurt a person's chances of getting a job or housing. It can also lead to harsher charges in future cases.
