Being accused of possessing an illegal controlled substance is serious. But in Pennsylvania, there can be a significant difference between being charged with possessing drugs for personal use and being accused of possessing those drugs with the intent to deliver them.
That distinction can affect the charges you face, the potential penalties and how your case should be approached.
One of the most important things to understand is that police do not necessarily have to see someone sell or deliver drugs for that person to be charged with Possession With Intent to Deliver, commonly called PWID.
Instead, law enforcement and prosecutors may rely on the amount of the substance involved and other circumstances surrounding the alleged possession to argue that the drugs were intended for distribution.
Understanding the difference between simple possession and PWID can help you better understand what you are facing and why speaking with a drug charges defense attorney early in the process is important.
What Is Simple Possession in Pennsylvania?
Under Pennsylvania law, simple possession generally involves knowingly or intentionally possessing a controlled substance without legal authorization.
In many cases, a simple possession charge involves an allegation that the controlled substance was intended for the individual’s personal use rather than for sale or distribution.
The circumstances can vary widely. Simple possession cases may involve substances such as cocaine, heroin, fentanyl, methamphetamine, marijuana or prescription medications for which the individual does not have a valid prescription or other legal authorization.
Even when the amount involved is relatively small, a drug possession charge should not be dismissed as insignificant. A conviction can carry criminal penalties and create consequences that extend beyond the immediate case.
What Does PWID Mean in Pennsylvania?
PWID stands for Possession with Intent to Deliver.
To obtain a conviction for PWID, the Commonwealth must establish that the defendant possessed a controlled substance and intended to manufacture, distribute or deliver it.
The key difference is intent.
With simple possession, the allegation is generally that the controlled substance was possessed for personal use. With PWID, prosecutors allege that the person intended to provide the controlled substance to someone else.
Importantly, “delivery” does not necessarily mean a traditional drug sale involving an exchange of drugs for money. Depending on the circumstances, transferring or intending to transfer a controlled substance to another person can potentially support a delivery or PWID charge.
Can You Be Charged with PWID If Police Never Saw You Sell Drugs?
Yes.
This is an important point because people are sometimes surprised to learn they have been charged with PWID even though police did not witness a drug transaction.
Pennsylvania courts allow intent to deliver to be inferred from the circumstances surrounding the alleged possession. That means prosecutors may attempt to build a PWID case using circumstantial evidence rather than evidence of an actual sale.
No single factor automatically proves that someone intended to deliver drugs. The facts of the individual case matter.
What Evidence Can Be Used to Support a PWID Charge?
When determining whether drugs were allegedly possessed for personal use or intended for distribution, investigators and prosecutors may consider a number of factors.
Quantity of the Controlled Substance
The amount of the drug involved can be an important factor.
A larger quantity may be used by prosecutors to argue that the amount exceeds what would ordinarily be expected for personal use. But quantity alone does not tell the entire story, and what may be considered significant can vary depending on the substance and circumstances.
How the Drugs Were Packaged
Police may look at whether a controlled substance was contained in one package or divided among multiple bags, containers or individual doses.
Separate packaging may be cited as evidence that drugs were prepared for distribution.
Scales, Baggies or Other Items
Items that police believe are associated with weighing or packaging drugs may also become part of a PWID case.
For example, investigators may point to digital scales, unused baggies or other packaging materials as evidence supporting an alleged intent to distribute.
However, the presence of an item does not automatically establish what it was being used for or who was using it.
Cash
The presence of cash, particularly larger amounts or certain denominations, may be cited by prosecutors as another circumstance supporting an allegation of drug distribution.
Again, possessing cash by itself does not prove that someone was selling drugs. The source of the money and the circumstances in which it was found can be important.
Evidence of Personal Use
The presence or absence of items associated with personal drug use may also become relevant.
Evidence suggesting personal consumption can potentially support an argument that the drugs were possessed for personal use rather than distribution. Conversely, prosecutors may point to a lack of personal-use paraphernalia when arguing that drugs were intended for delivery.
Statements, Messages or Other Evidence
Text messages, social media communications, observations by law enforcement, witness statements and other evidence may also be used when investigators believe the communications or conduct relate to drug distribution.
The meaning and context of that evidence can become an important issue in the defense of the case.
Confidential Informants and Controlled Drug Purchases
Law enforcement may also use confidential informants (CIs) to investigate suspected drug distribution and gather evidence in PWID cases.
A confidential informant may provide information about suspected drug activity, participate in controlled drug purchases or assist investigators in identifying individuals believed to be involved in drug distribution.
Evidence obtained through these investigations may include recorded communications, surveillance, observations by police or information provided by the informant.
However, the use of a confidential informant can also raise important questions about the reliability of the information provided, how the investigation was conducted and whether evidence was obtained lawfully.
The circumstances surrounding an informant’s involvement can play an important role in evaluating the prosecution’s case.
Is There a Specific Amount of Drugs That Automatically Makes a Case PWID?
Not necessarily.
There’s no universal quantity that automatically turns every simple possession case into PWID.
The type and amount of the controlled substance are important, but Pennsylvania courts consider the circumstances surrounding the possession when evaluating whether there was an intent to deliver.
This is why two cases involving the same controlled substance may result in very different charges.
The question is not simply how much was allegedly possessed, but what the evidence as a whole may or may not establish about the person’s intent.
What If the Drugs Weren’t Mine?
Possession is another issue that may need to be examined carefully.
Drugs are not always found directly on someone’s person. They may be discovered in a vehicle, home, apartment, hotel room or another location occupied or accessed by multiple people.
In those situations, prosecutors may rely on a legal concept known as constructive possession to argue that a person had the ability and intent to exercise control over the controlled substance even though it was not physically found on them.
Simply being near drugs does not necessarily establish possession.
Questions such as who owned or controlled the location, who had access to the area where the drugs were discovered and what other evidence connects a particular person to the substance can become significant.
Why Is the Difference Between Simple Possession and PWID So Important?
PWID is generally a significantly more serious charge than simple possession and can expose a defendant to much greater criminal penalties.
The potential consequences depend on factors including the controlled substance involved, the amount, the specific charge, the person’s criminal history and other circumstances surrounding the case.
A PWID conviction can also have consequences beyond incarceration or fines. Depending on the circumstances, a drug conviction can affect employment, professional licensing, educational opportunities, immigration status and other areas of a person’s life.
That makes it important to understand exactly what the Commonwealth is alleging and what evidence it intends to use to prove both possession and intent.
Can a Drug Possession or PWID Charge Be Challenged?
Yes. The appropriate defense depends on the circumstances of the individual case.
A criminal defense attorney may examine questions such as:
- Did law enforcement have a lawful basis to stop, search or detain you?
- Was a search warrant valid and properly executed?
- Did the prosecution establish that you actually or constructively possessed the drugs?
- Did other people have access to the location where the drugs were found?
- Does the evidence actually support an intent to deliver?
- Is there another reasonable explanation for cash, packaging materials or other items police are relying upon?
- Were statements obtained in violation of your constitutional rights?
- Was the substance properly identified, tested and handled?
- Was a confidential informant involved in the investigation, and are there questions about the informant’s reliability, conduct or how evidence was obtained?
In some cases, the central issue may be whether the Commonwealth can establish possession at all. In others, possession may not be seriously disputed, but the evidence supporting an alleged intent to deliver may be challenged.
Every case requires an examination of the specific facts.
What Should I Do If I Am Charged With Drug Possession or PWID?
Do not assume that you should explain the situation to police or investigators yourself.
If you are questioned about suspected drug possession or distribution, do not make a statement without first speaking with an attorney. What you say may later be used as evidence against you, including as evidence of alleged possession or intent.
You should also contact a criminal defense attorney as soon as possible after contact with police, even if charges have not yet been formally filed.
Early involvement gives your attorney an opportunity to understand what happened, evaluate the circumstances of any search or seizure, preserve potentially important evidence and begin identifying issues that may affect the case.
At Dethlefs, Pykosh & Murphy, we represent individuals facing drug possession, PWID and other criminal charges throughout Central Pennsylvania, including Dauphin, Cumberland, York, Adams, Franklin, Perry and Lancaster counties.
If you have been arrested, charged or contacted by law enforcement about a drug offense, contact our office to speak with an attorney about your situation.
Frequently Asked Questions
Can you be charged with PWID without selling drugs in Pennsylvania?
Yes. Police do not have to witness an actual sale for someone to be charged with PWID. Prosecutors may rely on circumstantial evidence, including the quantity and packaging of drugs, cash, scales, communications and other circumstances, to argue that the drugs were intended for distribution.
Is PWID a felony in Pennsylvania?
PWID can carry serious criminal penalties in Pennsylvania. The grading and potential penalties depend on factors including the controlled substance involved and the circumstances of the case. An attorney can review the specific charge and explain the potential consequences that apply.
Can a PWID charge be reduced to simple possession?
The outcome depends on the facts and evidence in the individual case. When the evidence does not sufficiently establish an intent to deliver, the distinction between PWID and possession for personal use may become an important issue in the defense.
Does a Confidential Informant Have to Testify in a Pennsylvania Drug Case?
Not always. Although confidential informants are commonly used in drug investigations, their involvement does not automatically mean they must appear or testify in court.
Whether an informant’s identity must be disclosed or their testimony is necessary depends on the circumstances of the case and the applicable legal requirements.
A criminal defense attorney can examine the informant’s role in the investigation, how evidence was obtained and whether any issues involving the informant may affect the prosecution’s case.
