Possession of Marijuana in Virginia: The Basics

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In Virginia, a first-time offender convicted of possession of marijuana has committed a misdemeanor punishable by a maximum of 30 days in jail and a fine of up to $500. A second offense is a Class 1 misdemeanor, which carries a punishment of up to 12 months in jail and a fine of up to $2500. A conviction for marijuana possession (first time or subsequent) also mandates a six-month driver’s license suspension. See Virginia Code Section 18.2-250.1.

To successfully convict a person of possession of marijuana, the Commonwealth must prove beyond a reasonable doubt that the person 1) was aware of the presence of the drug, 2) was aware of the character of drug (i.e., knew the drug was marijuana), and 3) consciously possessed it.

If an out-of-state resident is charged with possession of marijuana in Virginia, he may face additional penalties in his home state. Most states receive information regarding residents’ criminal records when an offense occurs in another state and may respond with a separate legal action.

What if marijuana was found in my car?

There are two types of possession: actual and constructive. Actual possession is when, for example, you have a baggie in your pocket. Constructive possession means you have “dominion and control” over the substance even if you do not physically possess it. This could include having marijuana in the glove compartment or the trunk of your car, for example – even if it isn’t yours.

However, just because marijuana was found in your car (or a car you were driving) does not automatically mean you will be found guilty of possession of marijuana. The prosecutor must present additional evidence to sustain a conviction. See Virginia Code Section 18.2-250.1(A).

What if I am in possession of a large amount of marijuana?

Generally, possession of ½ ounce or less of marijuana will likely result in a charge of simple possession. Possession of more than ½ ounce of marijuana can result in a charge of possession with intent to distribute (a Class 5 felony), which we will discuss in a later post.

What is deferred prosecution and how can it help me?

Deferred prosecution, also known in Virginia as a 251 Disposition, refers to a period of probation that, when served successfully, results in the charges being dismissed. This is often an option for first-time offenders who are charged with possession of marijuana. The terms of the probation can include a requirement to remain drug- and alcohol-free for the probation period, urine screens, community service, a substance abuse assessment and treatment program, and payment of court costs and fines. See Virginia Code Section 18.2-251.

A judge can also issue a restricted license during the probation period so that a person who receives deferred prosecution can drive to work, school, doctor’s appointments, court, child care services, and other necessary locations.

It is important to keep in mind that even if you satisfy all of the probation requirements and your first-time possession charge is dismissed as a result, the offense will still be treated as a conviction in any subsequent drug-related offenses. That is, if you successfully complete the deferred prosecution program and you receive another possession of marijuana charge at a later date, the subsequent offense will constitute a second offense for the purposes of adjudication and sentencing.

What about medical marijuana in Virginia?

A Virginia law passed in 1979 permits the prescription of marijuana to treat cancer or glaucoma (and the possession of marijuana pursuant to a valid prescription). See Virginia Code Section 18.2-251.1. However, this law is essentially ineffective because doctors cannot legally prescribe medical marijuana as a matter of federal law; they can only “recommend” it. As a result, Virginia does not currently have a functional medical marijuana program.

While many U.S. states have enacted laws that effectively legalize medical marijuana, Virginia residents and visitors should keep in mind the current legal status in Virginia.

How can a criminal defense attorney help me if I am charged with possession of marijuana?

There are a number of ways to challenge a marijuana possession charge. An attorney can challenge the legality of the officer’s search that led to the marijuana as well as the arrest itself. The police must strictly follow established procedure when conducting searches, handling evidence, and executing arrests. One misstep on their part could result in the charges being dismissed. To determine the best approach to your specific case, contact a criminal defense attorney licensed in your state.

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