(Note: This article will be outdated on July 1, 2020 when a new law in Virginia takes effect. That law make Possession of small amounts of Marijuana a civil fine of $25. Possession of less than 1 oz is presumed “possession” and thus a civil crime as opposed to possession with the intent to distribute which is still a crime.)
So many states have legalized Marijuana in recent years. While states such as Oregon, Washington, California, Colorado and others have legalized recreational Marijuana, a total of 29 states have legalized it for medical purposes. Thus, some falsely assume that possession of Marijuana in Virginia is o.k. To be clear, Marijuana is NOT legal in Virginia, and if you are charged with Possession of Marijuana, Possession with the Intent to Distribute Marijuana or Distribution of Marijuana, you should seek a Possession of Marijuana lawyer Fairfax VA trusts.
Possession of Marijuana in Virginia is a Class 1 Misdemeanor, which is punishable by up to 12 months in Jail and up to a $2,500 fine. In addition, it causes your license to be suspended for 6 months. It is rare for a first-time offender to get even one second in jail, but a fine of a few hundred dollars is common. The License suspension is mandatory, but most people can get a restricted license for certain purposes such as work, child care, medical care. Now if you are a in an unregulated profession where a criminal record for “Possession of Marijuana” won’t hurt you, it may not be worth hiring an attorney. There is no law that says you have to have an attorney. However, if you don’t want this on your record, and have to get it dismissed, it would be wise to retain a lawyer.
There are three ways to get a Possession of Marijuana dismissed. The most common is through a special program authorized by VA Code §18.2-251. I have included the entire section below. But in summary, if you have never been convicted of a drug possession charge anywhere previously, and have not done this program previously, then you can get the case continued for between 6-mos – 1 year (It depends upon the Judge. Some Judges go long and some do short periods) if you do the following: (i) to successfully complete an alcohol/drug treatment or education program or services, (ii) to remain drug and alcohol free during the period of probation and submit to such tests during that period, (iii) to make reasonable efforts to secure and maintain employment, and (iv) to comply with a plan of up to 24 hours of community service for a misdemeanor. A six-month license suspension is also required. However, recent legislation which has not yet become effective, states that if you do extra community service, you will not have your license suspended. You should consult a Possession of Marijuana Lawyer Fairfax VA to find out if this law has become effective yet. As of the writing of this article, the law had passed, but has not become effective.
- 18.2-251. (Contingent expiration date — See Editor’s note) Persons charged with first offense may be placed on probation; conditions; substance abuse screening, assessment treatment and education programs or services; drug tests; costs and fees; violations; discharge.
Whenever any person who has not previously been convicted of any offense under this article or under any statute of the United States or of any state relating to narcotic drugs, marijuana, or stimulant, depressant, or hallucinogenic drugs, or has not previously had a proceeding against him for violation of such an offense dismissed as provided in this section, pleads guilty to or enters a plea of not guilty to possession of a controlled substance under § 18.2-250 or to possession of marijuana under § 18.2-250.1, the court, upon such plea if the facts found by the court would justify a finding of guilt, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him on probation upon terms and conditions.
As a term or condition, the court shall require the accused to undergo a substance abuse assessment pursuant to § 18.2-251.01 or 19.2-299.2, as appropriate, and enter treatment and/or education program or services, if available, such as, in the opinion of the court, may be best suited to the needs of the accused based upon consideration of the substance abuse assessment. The program or services may be located in the judicial district in which the charge is brought or in any other judicial district as the court may provide. The services shall be provided by (i) a program licensed by the Department of Behavioral Health and Developmental Services, by a similar program which is made available through the Department of Corrections, (ii) a local community-based probation services agency established pursuant to § 9.1-174, or (iii) an ASAP program certified by the Commission on VASAP.
The court shall require the person entering such program under the provisions of this section to pay all or part of the costs of the program, including the costs of the screening, assessment, testing, and treatment, based upon the accused’s ability to pay unless the person is determined by the court to be indigent.
As a condition of probation, the court shall require the accused (i) to successfully complete treatment or education program or services, (ii) to remain drug and alcohol free during the period of probation and submit to such tests during that period as may be necessary and appropriate to determine if the accused is drug and alcohol free, (iii) to make reasonable efforts to secure and maintain employment, and (iv) to comply with a plan of at least 100 hours of community service for a felony and up to 24 hours of community service for a misdemeanor. Such testing shall be conducted by personnel of the supervising probation agency or personnel of any program or agency approved by the supervising probation agency.
The court shall, unless done at arrest, order the accused to report to the original arresting law-enforcement agency to submit to fingerprinting.
Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without adjudication of guilt and is a conviction only for the purposes of applying this section in subsequent proceedings.
Notwithstanding any other provision of this section, whenever a court places an individual on probation upon terms and conditions pursuant to this section, such action shall be treated as a conviction for purposes of §§ 18.2-259.1, 22.1-315, and 46.2-390.1, and the driver’s license forfeiture provisions of those sections shall be imposed. The provisions of this paragraph shall not be applicable to any offense for which a juvenile has had his license suspended or denied pursuant to § 16.1-278.9 for the same offense.
For most people, getting the charge dismissed by §18.2-251 is fine. However, the one thing a lot of lawyers don’t tell their clients is that the Criminal Record will say, “Charged Possession of Marijuana – Dismissed.” And this cannot be expunged (a.k.a. erased.) It remains on your record for the rest of your life. If you want to have the charge expunged/erased, you need to get it dismissed the other two ways.
Getting the Prosecutor to agree to dismiss (“nolle prosequi” which is Latin for “not prosecute”) is one way. But this is difficult. When I was a prosecutor, I did not do it. I would say, “If I do it for you, then I have to do it for everyone… Show me why I may lose, so I can justify dropping the case.” Having been a Prosecutor, I know that Prosecutors need to put in their notes something about why they dismissed a case so that if asked by the boss why they did it, the Prosecutor can respond, “I thought I would lose at trial because XXXX.” An experienced Possession of Marijuana Fairfax VA lawyer knows that a Prosecutor needs an excuse to dismiss a case. So, it is best to come to court prepared with a defense, to show the Prosecutor why he might lose.
If the Prosecutor will not dismiss the case, then there is only one other way to do it – go to trial. After hearing the facts of your case, an experienced Possession of Marijuana Lawyer Fairfax VA will be to identify defenses. Some of the most common defenses are illegal stops by the Police, illegal searches by the Police, a location of the Marijuana that does not prove beyond a reasonable doubt that it belongs to the Defendant (e.g. in a car with multiple people and the Marijuana is in the center console), or faulty laboratory tests.
If you cannot live with a Marijuana conviction, we would be honored to represent you.