Guide to Possession of Marijuana Charge in Virginia

The possession of marijuana in Virginia without a valid prescription is illegal. See Va. Code § 18.2-250.1 There is no minimum amount of marijuana needed to prove possession. Even marijuana residue will suffice to prove possession.  Marijuana is still classified as a Schedule 1 substance under the Controlled Substances Act. However, unlike possession of most Schedule 1 or 2 substances which is a felony, possession of marijuana in Virginia has a special statute that makes simple possession of marijuana without a valid prescription a misdemeanor.

How do they prove it?

The prosecution has to prove that the defendant had knowledge of the marijuana or intentionally possessed it. In order to prove that, they must show that the defendant 1) was aware of or had knowledge of the character of the drug, 2) had knowledge of its presence, and 3) that the defendant consciously possessed it. The best defense to a possession charge is keeping the evidence out of court by demonstrating that the evidence was obtained illegally. If the evidence cannot be suppressed, the next step is to show that the possession was not knowing or intentional or that the defendant had a valid prescription.

How do they prove the substance was marijuana?

Virginia statutes allow officers to use field tests to test the marijuana. The field tests must be approved by the Department of Forensic Science (DFS). See Va. Code § 19.2-188.1 Notice must be given to the defendant that he/she has a right to a full lab analysis before trial. Generally, the Commonwealth has to admit a lab report produced by DFS to prove the substance was marijuana. However, in simple possession cases, the DFS no longer provides a lab report and instead the Commonwealth relies on the officer’s testimony that he or she performed a field test on the substance to verify that it was marijuana.  If the officer does not use a test kit approved by the DFS, a defense attorney can argue that the charge should be dismissed or that the defendant should be found not guilty.

For more information on field tests and marijuana, click here.

How is possession of marijuana punished? What are the penalties for possession of marijuana?

A first time possession conviction is a misdemeanor. The maximum penalty is 30 days in jail and a $500 fine. A second possession conviction is a class 1 misdemeanor, punishable by up to a year in jail, a $2,500 fine, and/or both.

A person who is convicted of possession of marijuana will have their license suspended for a period of six months. An application for a restricted license is permitted. A restricted license allows an individual to drive for specific purposes such as employment, school, community service, probation compliance, and religious reasons to name some examples.

Will you go to jail for possession of marijuana?

It is rare that judges sentence people to jail for a first or second possession of marijuana. However, every case is different and a defendant’s criminal record or other circumstances around the case may give a judge a reason to impose an active jail sentence. After a third conviction for possession of marijuana, an active jail sentence is often expected. It is impossible to accurately predict whether a defendant will go to jail without evaluating and investigating the details of the case and the defendant’s criminal record.

COLLATERAL CONSEQUENCES

Although an increasing number of states are relaxing their marijuana laws, the collateral consequences of a marijuana conviction are difficult to fully predict. A conviction remains on an individual’s criminal record for life and could affect future employment or security clearances. For students, possession of marijuana may make them ineligible for student loan programs for a period of time. There are other unforeseen outcomes of a possession charge that may arise in the future.

Actual vs. Constructive Possession of Marijuana:

Actual possession occurs when an individual has the illegal substance on their person. For example, the marijuana is found in the defendant’s pocket or wallet. Constructive possession is harder to prove because in constructive possession cases, the marijuana is not found directly on the individual. Since the marijuana is not found on the defendant’s person or body, circumstantial evidence is used to prove possession. In constructive possession cases, the Commonwealth has to use other facts or evidence such as statements, admissions or conduct that shows that the defendant was aware of the presence and nature of the illegal drug and that it was subject to the defendant’s dominion or control. Examples of constructive possession cases is when marijuana is found under a car seat or in the center console, or in the defendant’s bedroom, but not on their person.

NOTE: Ownership or occupancy of premises or vehicle upon or in which the marijuana was found shall not create a presumption that such person either knowingly or intentionally possessed the marijuana. Tucker v. Commonwealth, 18 Va. App. 141 (1994). However, that is a factor that may be considered in determining whether a defendant possessed marijuana.

Defenses:

The best way to defend against a possession of marijuana charge is by suppressing the evidence. This is done by demonstrating that the evidence was obtained in violation of the defendant’s Fourth Amendment rights. An example is an illegal stop of the defendant’s car, or a warrantless search without a valid exception to the warrant requirement. By suppressing the evidence, the Commonwealth is forced to drop the charge. This is why it is advised to consult with an attorney who is trained in defending drug possession cases and can advise you about possible suppression issues that can prevent the Commonwealth from using any of the evidence obtained against you in court.

Possession of Controlled Paraphernalia in Virginia

Possession of controlled paraphernalia is also a misdemeanor. Some defendants prefer to plea to this charge so as to avoid a suspension of their driver’s license. The statute is found under Va. Code § 54.1-3466. It is advisable to read this statute before pleading to this charge because the statute includes among its definitions of controlled paraphernalia items like syringes and hypodermic needles which some defendants find offensive and do not wish to be associated with.

251 Disposition (First Offender Program) Va. Code § 18.2-251

This program is available for first time offenders. This program requires a six month license suspension, performance of 24 hours of community service in a misdemeanor case, attendance at drug counseling programs, submission to random drug testing and a period of good behavior with no further violations. The defendant also has to pay all court costs and fines. If the defendant successfully completes the program, the charge will be dismissed. However, the arrest is not eligible for expungement in a 251 disposition. Furthermore, if there is a future charge, a 251 disposition counts as a conviction and the defendant will not be eligible to participate in the program again.  Viewing a 251 disposition as the equivalent of a prior conviction for sentencing purposes is especially common among prosecutors and judges.