Is Marijuana Still a Controlled Substance?

Is Marijuana Still a Controlled Substance?

By Marc A. Scaringi, Esq.

An Allegheny County man recently challenged the continued classification of marijuana as a Schedule I Controlled Substance under the Pennsylvania Controlled Substances Act (CSA) in the Pennsylvania Superior Court case Commonwealth v. Jezzi, 2019 PA Super 132 (2019).

Here are some of the facts.

A confidential informant had tipped off the police that the Allegheny man, Mr. Jezzi, was packaging and distributing marijuana from his home. Police did a trash pull and found a large quantity of marijuana residue in one bag and loose marijuana in another bag. Police got a warrant and found about 40 plants in his home. Why people put marijuana residue and bags of marijuana out on the curb for trash removal and don’t worry about someone -- like the police -- finding out about it is beyond me. In any event, Mr. Jezzi was charged with:

1. Possession with Intent Deliver Marijuana

2. Possession of Marijuana

3. Possession of Drug Paraphernalia

Jezzi filed a motion in court challenging the continued classification of marijuana as a Schedule I substance under the CSA, following passage of the MMA, which is the Medical Marijuana Act.

In short, he claimed the Schedule I classification of marijuana denies Pennsylvania citizens equal protection under the law because the CSA states marijuana has no medical use BUT the MMA sets up a medical marijuana production, distribution, and certification program for those who are medical patients or medical patient caregivers – so it obviously has a medical use. Seems like a common-sense conclusion, doesn’t it?

Not so fast. The trial court denied his motion, he was convicted of all three charges and he appealed. On appeal he continued his argument that the continued criminal classification of marijuana as a Schedule 1 controlled substance is irreconcilable with the Medical Marijuana Act because according to Jezzi the MMA must mean marijuana has a medical use.

The Pennsylvania Superior Court disagreed. It held, “In essence, the MMA creates a temporary program for qualified persons to access medical marijuana, for the safe and effective delivery of medical marijuana, and for research into the effectiveness and utility of medical marijuana. Significantly, the MMA does NOT declare that marijuana is safe and effective for medical use.” And, “the MMA was not intended to remove marijuana from the list of Schedule I substances under the CSA.”

Another note is that Court used the rational basis test, which is the lowest burden for the Commonwealth to satisfy in defense of the constitutionality of a statute. That means the Court did not find that the criminalization of marijuana affected a fundamental right or even an important right. Furthermore, the court reminds us that our Commonwealth may criminalize the possession, manufacture, and distribution of marijuana and other intoxicating substances, independent of their medical utility, as a function of the police power, and the reasonableness of such measures is largely at the discretion of the legislature and courts do not like to intervene and override the legitimate public policy determinations made by legislatures asserting their police power. Then, the court made the determination that the CSA furthers the legitimate government interest of public safety by protecting the public from unfettered access to unsafe substances. And there you have it.

In short, the court is basically saying the regulation of marijuana is a matter best left to the General Assembly and not the courts.

If you have any questions about marijuana regulation or criminal law, do not hesitate to contact the experienced attorneys at Scaringi Law at 717-657-7770 or


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