Top Criminal Lawyer Fairfax VA
Virginia Distribution of Marijuana law.
If you are reading this, you, a loved one, or a friend has been charged with Distribution of Marijuana. I have a lot to offer you in this short article as I have prosecuted and defended this charge many times in the past. In addition, as a member of the Virginia legislature from 1994 to 2017, I have had a hand in actually writing this law.
Distribution of Marijuana has become quite a common charge in recent years. I believe it is due to the fact that so many states have recently either made marijuana legal or de-criminalized the possession of marijuana (e.g. if you are convicted of possession in those states, you get a financial penalty, but no criminal record.) This has caused many people to believe that marijuana is not a big deal in Virginia. Well, let me set the record straight – in Virginia, Possession of Marijuana and the Distribution of Marijuana is still a crime!
As for Distribution of Marijuana, a Top Criminal Lawyer Fairfax VA trusts should be able to show you the actual Code section and explain each element that must be proven by the Prosecutor beyond a reasonable doubt.
§ 18.2-248.1. Penalties for sale, gift, distribution or possession with intent to sell, give or distribute marijuana.
Except as authorized in the Drug Control Act, Chapter 34 of Title 54.1, it shall be unlawful for any person to sell, give, distribute or possess with intent to sell, give or distribute marijuana.
(a) Any person who violates this section with respect to:
(1) Not more than one-half ounce of marijuana is guilty of a Class 1 misdemeanor;
(2) More than one-half ounce but not more than five pounds of marijuana is guilty of a Class 5 felony;
(3) More than five pounds of marijuana is guilty of a felony punishable by imprisonment of not less than five nor more than 30 years.
If such person proves that he gave, distributed or possessed with intent to give or distribute marijuana only as an accommodation to another individual and not with intent to profit thereby from any consideration received or expected nor to induce the recipient or intended recipient of the marijuana to use or become addicted to or dependent upon such marijuana, he shall be guilty of a Class 1 misdemeanor.
To prove distribution of Marijuana, the test is quite simple. The Prosecutor must prove beyond a reasonable doubt the following: (1) That the Defendant gave or sold marijuana to another person, and (2) That the weight of the marijuana was X.
The punishment is based on the weight. So, if the weight was ½ oz. or less, the punishment is a mere Class 1 Misdemeanor. If it is over ½ oz. to 5 lbs., the punishment is a Class 5 Felony. (0-10 years in prison and up to a $2,500 fine). And if it is over 5 lbs., the punishment is very tough, an unclassified Felony with 5 – 30 years in prison.
While every Top Criminal Lawyer Fairfax VA defending a person on a Distribution of Marijuana charge is looking for a dismissal, many times the facts are clear – the Defendant transferred the marijuana to another and the weight was X. Game over? No! An experienced Virginia criminal lawyer knows about the “accommodation” language which enables a Felony to be reduced to a Misdemeanor. The “accommodation” language was put in the code for people who are just trying to help a friend “get some weed.” This usually comes up in a ½ oz. – 5 lbs. case. Obviously, selling over 5 lbs. is never done to just help a guy get some weed. In a situation where a client has, for example, eight 1 oz. baggies of marijuana and is selling it for cost as a means to help his friend get some marijuana, his/her criminal defense lawyer may argue that it was done as an “accommodation.” The definition of “accommodation” in case law is set forth in the dissent of Hudspith v. Com, 435 S.E.2d 588, 17 Va. App. 136 (Va. App. 1993), “An accommodation distribution is ‘a sale or distribution … made, not by a dealer in drugs … but by an individual citizen who was motivated by a desire to accommodate a friend, without any intent to profit or to induce or to encourage the use of drugs.’ Stillwell v. Commonwealth, 219 Va. 214, 219, 247 S.E.2d 360, 364 (1978); see also Heacock v. Commonwealth, 228 Va. 397, 406, 323 S.E.2d 90, 95 (1984).”
But, your Top Virginia criminal lawyer will further explain that it gets a little confusing because the mere fact that the marijuana was not sold at a profit does not automatically make it an “accommodation.” In other words, selling at a break-even price or even a loss does not automatically make an “accommodation.” In King v. Commonwealth, 247 S.E. 2d 368, 219 Va. 171 (Va. 1978) the Court of Appeals states “The expression ‘profit’ is used in the statute to indicate a commercial transaction in which there is a consideration involved. It does not necessarily mean that a seller of drugs has to sell his drugs to a buyer at a price in excess of the amount the seller paid for the drugs.”
So, if the marijuana was sold at a profit, I don’t believe there is any chance of getting an accommodation. But if it was sold at cost or for a loss and if the Top Criminal Lawyer Fairfax VA can convince a Judge or Jury that the sale was done just to help a friend acquire Marijuana, there is a good case for an “accommodation.” And if the Judge or Jury agrees, the case will not be a Felony, but rather, a mere Misdemeanor.