Possession of a Controlled Substance
Thank you for visiting the Lampman Law website. Lampman Law is located on Public Square in Wilkes-Barre, Pennsylvania and we practice throughout northeastern and central Pennsylvania. From the time Lampman Law opened we have focused on criminal defense, have been in Pennsylvania criminal courts daily, and have represented good people that have been charged with drug possession and trusted us to defend them.
We understand that even though misdemeanor drug possession offenses do not have the gravity and/or severe penalties associated with felony drug crimes—any drug charge can have a devastating long-term impact on an individual’s criminal record, employment opportunities, and reputation.
More Importantly, we understand how to defend drug possession cases—we prepare to attack and to win. Lampman Law is always ready and willing to fight and will perform a full investigation of all cases we handle before offering our advice concerning a case’s resolution. In short, we insist on reviewing all the evidence before concluding on the strength or weakness of a case. It is equally important, however, that we always offer direct and honest advice to our clients. If, after reviewing all the evidence, we determine that a case is unlikely to succeed we timely advise our clients of our opinion and fully explain our reasoning in detail. Often, we resolve possession cases without jail time, or probation supervision.
WHY HIRE LAMPMAN LAW?
Direct & Honest Advice
Two Experienced, Prepared & Skilled Defenders
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Possession of a Controlled Substance
35 P.S. 780-113(a)(16)
Elements of Simple Possession
In Pennsylvania it is illegal for a person to possess any controlled substance that is not properly prescribed by medical practitioner. Illegally possessing a controlled substance for personal use is commonly referred to as Simple Possession.
To convict a person of Simple Possession, the Commonwealth must prove beyond a reasonable doubt that the individual: (1) actually or constructively possessed a controlled substance; and, (2) the controlled substance is a drug or counterfeit drug.
Analyzing the Elements of 35 P.S. § 780-113(a)(16)
Actual possession means holding or carrying the drug on one’s person.
Constructive possession is the ability to exercise conscious control or dominion over the drug and the intent to exercise that control. Our courts have held that the intent to exercise conscious dominion can be inferred from the totality of the circumstances.
Why doesn’t the Commonwealth have to prove the accused was not legally authorized to possess the controlled substance? In 1979, the Superior Court held in Commonwealth v. Sojourner that before the prosecution must disprove the accused was authorized to possess narcotics under the drug act, the accused must establish some credible evidence of such authorization. 408 A.2d 1108. In other words, authorized possession is treated as an affirmative defense, like self-defense is to an assault. Thus, authorized possession must be offered with some credible evidence by the defense.
Summary of Notice and Process
In most cases where the police find someone is possession of a controlled substance for personal use, the drug is seized, and the accused is released. The police then file a criminal complaint that is mailed to the accused by the magistrate court. The criminal complaint outlines the officer’s reasoning for filing the charges. The court also sends the accused notice of a preliminary hearing date and a fingerprint order requiring the accused to be processed (fingerprinted, photographed, and released).
However, depending on the facts and circumstances of the case, the police may take custody of people accused of simple possession to interview them for further investigation.
Simple Possession of a Controlled Substance is an ungraded misdemeanor offense with a maximum penalty of 1-year incarceration or probation and a $5,000.00 maximum fine.
The maximum penalty increases for second or subsequent conviction of this offense. It is a 3-year maximum of incarceration or probation and a $25,000.00 maximum fine.
Criminal Consequences of a Simple Possession Conviction
Depending on the facts and circumstances, a conviction to this offense can be resolved with paying a fine and court costs, a probationary sentence, and/or jail.
Collateral Consequences of a Small Amount Conviction
Criminal Record of Drug Offense
A conviction to this offense will remain on an offender’s record for at least 10 years after the penalty (fines are paid, and supervision is completed). If the offender is free of prosecutions following the final disposition of the case, they can seek a limited access order to remove the offense from their criminal history.
Educational / Professional / Employment Consequences
Any drug conviction may preclude participation in certain educational programs. Likewise, even a drug arrest will likely result in some action from a professional license board. Further, it may be more difficult for an offender to obtain employment with this conviction on their record, and an employer may terminate someone convicted of the offense.
What are the Options?
An accused charged with Simple Possession is entitled to a jury trial. Trial is not often pursued by the accused in these cases because of the: time commitment required (multiple court appearances); financial expense in lawyer fees; general stress of having a pending case; they just want the case quickly resolved; and/or, they decided a different resolution was a better option. This is occasionally unfortunate because some of these cases have excellent constitutional arguments (suppression bases on illegal stop, search, seizure) and other viable defenses.
Many people accused of this offense want to resolve the case as soon as possible. This can often (but not always) be accomplished at the preliminary hearing, which is typically the first court appearance for these offenses. When entering any guilty plea, it is essential that the accuses is first fully advised of all their options and of all the consequences to entering the plea. When clients desire this resolution, Lampman Law attempts to first reduce the charges. Depending on the facts of the case, the accused prior record score, and specific goals, there are strategic advantages concerning where, when, and, of course, what to plead guilty to.
If an accused is eligible for a diversion program such as PWOV (Section 17) or the ARD program, the option must be fully explained and discussed. In fact, cases that are not factually suitable for suppression challenges or trial may be best resolved with PWOV or ARD. Moreover, these programs are often desired because they offer more control over the result and, if successfully completed, dismissal of the charges with the option for expungement. While these programs require a term of probation and may be more expensive than a plea at the magistrate court, they should be considered by anyone with a clean record that is determined to move past the case without a conviction.
Call Today for a Free Consultation
If you or someone you love has been charged with Simple Possession of a Controlled Substance in Pennsylvania call Lampman Law today at 570-371-3737 for free consultation.