Expunging a Charge for Using Tobacco in School in Pennsylvania

Recently, Pennsylvania became the 19th state in the U.S. to raise the legal age to buy tobacco from 18 to 21. At the same time, Pennsylvania banned tobacco products, including electronic cigarettes and vapes, on school grounds and school functions. The law banning tobacco use at school also applies to staff and other visitors to the school. As a result, we're probably going to see many minor charges for using tobacco on school grounds.

Fortunately, if you face a conviction for using tobacco in school, there are some options to have the charge expunged from your record. While students charged with the crime should not see it added to their criminal record, this may not be the case for adults, staff, and visitors, who unknowingly break the law. In Pennsylvania, you can often have minor charges like this expunged from your record. Expungement is a court order to destroy or remove records related to an arrest, charge, or conviction of a crime.

What Can I Expunge in Pennsylvania?

In Pennsylvania, you can typically expunge convictions that are summary offenses as long as it's been five years since you completed your sentence and you have been arrest and prosecution-free for five years. You can also expunge charges if you were charged but never prosecuted, charges that were dropped by the prosecutor or dismissed by a court, as well as nolle prosse dispositions.

A summary offense is considered a minor crime or an ordinance violation and is less serious than a misdemeanor or felony. In Pennsylvania, the maximum penalty for a summary offense is typically 90 days in jail and a fine of up to $1,500. However, a summary offense usually only results in a fine.

You can only expunge more serious crimes, like a misdemeanor or felony conviction in Pennsylvania, under very limited circumstances. However, you may be able to have these convictions sealed in some cases.

Using Tobacco in Schools in Pennsylvania

Pennsylvania law prohibits the use of tobacco products in schools for students, staff, and visitors. However, you may be eligible to have a conviction for using tobacco in schools expunged in Pennsylvania because it is a summary offense.

The Pennsylvania law prohibiting tobacco in schools states:

(a) Pupils.--A pupil commits a summary offense if the pupil possesses or uses a tobacco product:

(1) in a school building;

(2) on a school bus or other vehicle owned by, leased by or under the control of a school district; or

(3) on school property owned by, leased by or under the control of a school district.

18 Pa. Code § 6306.1(a) (2019). Tobacco products include cigarettes, chewing tobacco, cigars, snuf, and pipe tobacco as well as e-cigarettes or vapes. The law also applies to non-students on school property:

(1) Any person, other than a pupil, commits a summary offense if the person uses a tobacco product:

(i) in a school building;

(ii) on a school bus or other vehicle owned by, leased by or under the control of a school district; or

(iii) on school property owned by, leased by or under the control of a school district.

(2) The board of school directors may designate certain areas on property owned by, leased by or under the control of the school district where tobacco product use by persons other than pupils is permitted. The areas must be no less than 50 feet from school buildings, stadiums or bleachers.

Id. § 6306.1(a.1). The law requires the school board to set policies to enforce the prohibition of tobacco products both at schools and at school functions and publish these polices in school handbooks. See id. § 6306.1(a.2). However, the legislature limited possible punishment for violating this law:

A pupil who commits an offense under this section shall be subject to prosecution initiated by the local school district and shall, upon conviction, be sentenced to pay a fine of not more than $50 for the benefit of the school district in which such offending pupil resides and to pay court costs. When a pupil is charged with violating subsection (a), the court may admit the offender to an adjudication alternative as authorized under 42 Pa.C.S. § 1520 (relating to adjudication alternative program) in lieu of imposing the fine.

Id. § 6306.1(b).

The Pennsylvania legislature also sought to keep students caught with tobacco products from acquiring a criminal record. While the crime is a summary offense, the statute specifically prohibits adding the charge to student criminal records:

A summary offense under this section shall not be a criminal offense of record, shall not be reportable as a criminal act and shall not be placed on the criminal record of the offending school-age person if any such record exists.

Id. § 6306.1(c). The statute also expressly preempts any municipal codes about tobacco use in schools.

Can I Expunge a Charge for Using Tobacco in Schools?

The good news is that, yes, you may be able to expunge a charge for using tobacco in schools in Pennsylvania. But you shouldn't have to if you were a student at the time. For adults, while this charge will become part of your criminal record, it is a summary offense, and you may be able to expunge the conviction.

Normally, you can expunge a charge in Pennsylvania if:

• The conviction was a summary offense, and you've been arrest and prosecution-free for five years.
• The court never convicted you of the charge. Non-convictions that you can expunge include not guilty verdicts, nolle prosse dispositions, dropped charges, and charges the court dismissed.
• You went through a diversionary program like the Accelerated Rehabilitative Disposition ("ARD") or an adjudication alternative program where you went completed probation or community service without a conviction.

You can't typically expunge misdemeanors or felonies in Pennsylvania except in limited circumstances:

• You are at least 70 years old, and ten years have passed since the criminal proceedings, or
• The subject of the criminal record has been dead for at least three years, or
• You received a pardon from the governor.

Hire a Pennsylvania Attorney Experienced in Expunctions

If you need to expunge or seal a criminal record, you need to consult a skilled Pennsylvania expungement attorney. Attorney Joseph D. Lento is an experienced criminal defense attorney proficient in helping clients expunge criminal records. He can help. Give the Lento Law Firm a call at 888-535-3686.