PA Court Allows Marijuana Vape Case to Proceed Without Chemical Testing
Posted in Penn State Marijuana Possession on February 15, 2026
Is Chemical Testing of Marijuana Vape Needed at Preliminary Hearing Phase?
In Commonwealth v. Chadwick, a Centre County judge addressed an increasingly common issue in Pennsylvania criminal law: whether the Commonwealth can establish a prima facie Possession of Marijuana case involving a THC vape without laboratory testing.
Background of the Case
A Pennsylvania State Trooper conducted a traffic stop on Chadwick’s vehicle based upon an expired registration. During the stop, the trooper discovered active warrants and asked the defendant whether he possessed any weapons or contraband. In response, Chadwick gave a THC vape cartridge to the trooper. The vape device bore a marijuana leaf symbol. No field testing or laboratory testing was performed to confirm that the vape contained marijuana. Chadwick was charged with Possession of a Small Amount of Marijuana for Personal Use under 35 P.S. 780-113(a)(31).
The Legal Issue: Marijuana vs. Hemp
In the Pretrial phase of the case, Chadwick’s criminal defense attorney filed a habeas corpus motion and sought a dismissal of the marijuana charge. The argument was that the prosecution had failed to present sufficient evidence at the Preliminary Hearing that the vape cartridge contained marijuana and not hemp. Hemp is legal and has a lower percentage of delta-9 THC, whereas marijuana has a higher level of detlta-9 THC and is illegal to possess without a Pennsylvania Medical Marijuana card.
The Prima Facie Standard at a Preliminary Hearing
The Court emphasized that the Commonwealth’s burden at a preliminary hearing is probable cause, which is very low. It does not need to prove guilt beyond a reasonable doubt. Instead, it must present sufficient evidence that, if accepted as true, would establish each element of the offense.
Although the vape was never tested, the Court identified two key pieces of circumstantial evidence:
- The marijuana leaf symbol on the vape device
- The defendant’s admission in response to a direct question about contraband
The trooper did not simply ask whether the defendant had a vape. He asked whether the defendant had weapons or contraband. The defendant responded by producing the THC vape without qualification. The Court reasoned that a factfinder could interpret this as an adoptive admission that the vape was illegal. If the defendant believed the product was lawful hemp, he could have clarified that point.
While the Court acknowledged serious concerns about the Commonwealth’s ability to secure a conviction at trial without chemical testing, it concluded that the evidence met the prima facie threshold required at the preliminary stage.
Accordingly, the habeas corpus petition was denied.
Practical Implications for Pennsylvania Marijuana Cases
This decision highlights that many courts do not require forensic, chemical testing at the Preliminary Hearing stage of the case. Had the judge dismissed the charge at this early phase, the prosecution could have re-filed the charge. Double jeopardy, the constitutional right to not be tried twice for the same offense, does not apply at the Preliminary Hearing phase. The prosecution could have tested the vape, confirmed it contained marijuana and not hemp, and then re-filed the charge.
In this particular case, the prosecution will now have the vape tested in preparation for a trial. With such testing, Chadwick is likely to be convicted at trial. Even a good defense attorney cannot win a case that appears to be a “slam dunk” win for the prosecution. If convicted of the marijuana possession charge, Chadwick is facing up to 30 days in jail and a $500.00 fine. A conviction of a drug offense also triggers a lifetime prohibition on obtaining a concealed carry permit in Pennsylvania. A concealed carry permit is very important to firearm owners. Hopefully Chadwick’s lawyer can negotiate a resolution to avoid the drug conviction and thereby avoid the restrictions on firearm privileges.