Distributing Marijuana Is Not The Same As Selling Weed

To HLZ Law: The police saw me walk out of my dorm building and give a small baggie of weed to a friend of mine. (It was a quarter ounce of weed.) I gave my friend this because he was running low and I had some. I wasn't charging him and I'm not a drug dealer - I just like smoking weed with my friends. What am I facing?
From, Jordan B.

Jordan - the law of Pennsylvania recognizes that there is a difference between selling marijuana and giving marijuana to a friend. Selling marijuana is a felony offense punishable by up to five years in prison. However, giving a small amount of marijuana to someone for free is a very minor crime, punishable by only thirty days maximum (and usually just a fine).

Title 35 Section 780-113(a)(31) states: "Notwithstanding other subsections of this section, (i) the possession of a small amount of marijuana only for personal use; (ii) the possession of a small amount of marijuana with intent to distribute but not to sell it; or (iii) the distribution of a small amount of marijuana but not for sale" is a misdemeanor punishable by up to thirty days in jail or a five hundred dollar fine.

For purposes of this section, a small amount is defined as less than thirty grams. In case you don't know drug math, Jordan, a quarter ounce is about seven grams, so your situation fits the rule of law I've just described.

Let me make this clear, however. The District Attorney will almost certainly overcharge you with felony possession with intent to distribute, and you will definitely need counsel to fight the charges. Many DA's, and even many judges, are simply unaware of the law in this area. Good luck!

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Follow Up to a Citizen's Arrest

My previous post on a citizen's arrest got me thinking, how could someone truly effect a citizen's arrest in Pennsylvania?

In Philadelphia County you can go to 34 South 11th Street, on the Municipal Court side of the building about file a Private Criminal Complaint. In the private criminal complain, you must state the facts of whatever happened and the person you accused may be prosecuted if you continue on with the process throughout court. The District Attorney's office may even adopt the prosecution if they feel it is warranted. Usually the private criminal complaint process doesn't go too far, but I have seen people convicted of criminal acts from a private criminal complaint.

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Citizens Arrest of a Cop

I saw a cop roll through a stop sign then run a red light. I wanted to pull in front of the cop and block his ability to move his patrol car and call 911 on my cell so that I could give this guy a ticket citizens arrest style. Can I do this?

This is a unique question. The straight answer is that I have no idea if you can give a cop a citizens arrest traffic ticket, but I would not even think about doing this. I think you would get arrested or get your ass kicked for even trying to do this.

My kid used to go to a school that shared a building with a police station. There is one handicapped spot at the building. One day I saw an overweight officer park in the handicapped space and i wanted to say something to the officer. I was disgusted, but I didn't say anything because I was scared of what would happen to me.

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Second Chances For Second Time Offenders?

"If I got an underage gambling charge which is considered a disorderly person's offense in the state of New Jersey will I be ineligible for the ARD program in Pennslyvania?"

ARD stands for Accelerated Rehabilitative Disposition, and it is a program for first-time offenders in relatively minor cases. The District Attorney controls who gets into the program, but if an individual is accepted and meets all of the conditions of the program (paying court costs, staying out of trouble for a particular amount of time, etc...), then the case will be dismissed and there will be no criminal conviction.

The question here involves someone who has a prior conviction. I say this to the questioner, and to anyone in his or her position:

You are not automatically disqualified by having this very minor prior contact. In some situations, I have been successful in persuading the DA to give someone a second chance with ARD. However, there are no guarantees, and your lawyer will need to put together a compelling mitigation package for the DA's review.

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Statutory Sexual Assault

"My 17 year old son had sex with a 14 year old girl. Can he be charged with a felony? What are the statutory rape laws in Pennsylvania?"

This is not statutory rape (statutory sexual assault). The statute can be found at Title 18 Section 3122.1 which states in relevant part, "a person commits a felony of the second degree when that person engages in sexual intercourse with a complainant under the age of 16 years and that person is four or more years older that the complainant."

As long as the 14 year old girl admits that she voluntarily consented to sex with your son, then he is not properly charged with any sort of felony. In fact, I do not believe that any criminal charge can be made out.

If the allegation is that the sex was NOT voluntary, then there are certainly several felony charges that are appropriate, including rape, sexual assault, and aggravated indecent assault.

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State Detainers and Bail

If you are on state parole and are arrested for a new crime, you will automatically be detained by the local authorities.  It does not make sense to post the bail set on the new case, at least until the State Parole Board makes a determination as to whether the individual will be held pending the outcome of the new case.

The parolee is entitled to a first level detention hearing.  If the person has done well on parole up to the point of the arrest, and the new arrest is minor, it often makes sense to waive the first level hearing, admit to a technical violation, and ask the hearing examiner to make a recommendation to the Board for release.  As a practical matter, it often takes eight to ten weeks to get the 'green sheets' back, which is the final Board determination.

Assuming all goes well, the Board may decide to release the individual, or place that individual on an in-home detention/house arrest situation.  At that point, bail must be posted on the new case for the person to be released.

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Can a Judge Reject a Recidivism Risk Reduction Incentive (RRRI) Negotiated Guilty Plea?

Can a Judge Reject a Recidivism Risk Reduction Incentive (RRRI) Negotiated Guilty Plea?

Just for our readers' review: an outline of the practical side of RRRI and the first batch of RRRI questions.

Generally, in Pennsylvania the District Attorney can make any deal they want to make with the defendant and the defendant's lawyer. As a matter of law, if the Judge rejects any portion of the negotiated guilty plea or adds on any conditions to the guilty plea, the defendant has the right to withdraw plea because the plea would not be that for which the defendant bargained.

The District Attorney can waive, in any plea agreement, any state mandatory sentence or an RRRI requirements. Therefore the DA can say that you will be RRRI eligible as part of the plea negotiations when in fact your are not eligible for the RRRI program. However, the Judge, can reject the RRRI eligibility in the plea deal. Just like any other type of plea negotiations, when the Judge does not give the defendant the full benefit of the bargain, the defendant has the right to withdraw the guilty plea and fight the case.

A possible follow-up question could be: If you are deemed RRRI eligible through a plea deal and you complete all of the RRRI requirements once in state custody, will the state parole board actually parole you at your RRRI parole date? I have no idea, but my guess is that they would NOT parole you at your RRRI date, but that they would parole you much EARLIER then if you were not RRRI eligible and did not do all of the requirements. The RRRI program can only lead to an earlier parole date because the course is so heavy with work, but I do not think that the state parole board will rubber stamp RRRI early parole to all defendants. Just a guess though.

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New Sentencing Program Questions

The new Recidivism Risk Reduction Incentive (RRRI) program is up and running, and we've gotten a few questions about it already.

See Brian's December 10 post for the basic facts of the program.

Question: Do crime victims have a say in whether a criminal defendant gets the benefit of a RRRI sentence?

Answer: Crime victims cannot prevent a RRRI sentence if the offender is eligible. However, if the Judge and the prosecutor both agree to waive an offender's ineligibility, the crime victim has the absolute right to prior notice from the prosecutor and also has the right to object to the judge. Although the judge may still impose a RRRI minimum, crime victims have the right to be heard.

Question: Can the Judge or the DA change their minds about a RRRI waiver once somebody comes up for parole?

Answer: The sentencing judge loses jurisdiction over the case thirty days after the sentencing, and in that sense, the judge can't 'take back' the RRRI minimum. However, Act 83 of 2008 provides that a judge or a prosecutor can make an argument to the parole board that a potential parolee is no longer eligible for parole at the RRRI minimum for a number of reasons, for example, if new information about a previously unknown prior conviction has come to light.

The new RRRI sentencing program is a huge benefit not only for convicted persons, but for society as a whole. It allows the taxpayers to save a whole lot of money while ensuring that only certain classes of offenders who have good behavior can get out early. As a new program, this will generate a lot of questions from the public, from criminal defendants, and their loved ones. Keep your questions coming, and we'll do our best to answer them.

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