Despite the fact that marijuana use is legal in most states, the state of Virginia views its use as illegal. Possession of even a small portion of marijuana can land you with ‘simple marijuana possession’ charge. This offense is usually treated as a misdemeanor for first-time offenders, but subsequent offenses may be charged as felonies. Virginia Criminal Attorney offers criminal defense services for people in Fairfax and the greater Northern Virginia areas. If you are accused of simple possession of marijuana, contact us immediately for quick help.
Legal Description of Marijuana Possession in Virginia
Virginia Code 18.2-250.1 makes it unlawful for any person whatsoever to be in possession of marijuana knowingly and intentionally. However, an exception is provided where the drug was acquired from a medical practitioner with a valid prescription or in the line of his or her certified practice. Simple possession of marijuana charge applies when the amount you are accused of possessing is small enough to be used by any individual – usually lesser than 0.5 ounces.
Virginia code 18.2-248.1:1 also makes it unlawful for you to possess synthetic marijuana. The substance; also termed as K2 or spice, is a kind of insulator often manufactured industrially and has an effect of making you feel “high” upon smoking. The enactment of the legal section in 2011 led to the banning of a variety of compounds which were used in manufacturing synthetic marijuana. Before then, the drug in such a form could be sold openly.
What are the Elements of Crime for Marijuana Possession?
The Commonwealth prosecution has to prove that the substance in question was truthfully marijuana. To arrive at the conclusion, the arresting officers should conduct a field test at the place of crime upon which the results are forwarded to the court. For accuracy of the amount and further analysis, a lab test is carried on the alleged marijuana. In most cases of simple possession of the substance, the test may not be necessary unless the judge demand so. You can also present a request for a lab test rather than admitting to the police field tests.
Moreover, to be accused of marijuana possession legally, you must have been aware (conscious) of the nature of marijuana on your person. This means that you knew that the substance you were possessing was marijuana. Other than your knowledge of the drug, you practiced control over it (you intentionally controlled the substance). Hence, being found in actual possession of marijuana is the primary proof that the commonwealth’s prosecution can use to have you convicted, for example, if the police discovered the drug in your pockets.
The police, upon suspecting that you are possessing the drug, may interrogate you. Your admission that you owned the drug will go an extra mile in supporting the prosecutor’s evidence. Still, you may refute the fact that the substance that you were found possessing was not marijuana, and a lab test would be conducted to verify it.
Being in possession of marijuana does not imply that you must be the owner. Instances exist where you may be accused of possessing marijuana yet not in an actual sense, the drug did not belong to you. For example, if you borrow a car from someone and then drive before checking through the car. If the police pull you over and discover any traces of marijuana in the car, you will be accused of possessing the substance even if you were not aware. Similarly, you may have been traveling in a public vehicle then some marijuana is discovered on or near your seat – the police will tie it against you. Thus, Virginia marijuana possession laws do not extend further into proving who the actual owner of the substance is/was. So long as the substance was found within your proximity, that is also known as constructive possession, it is assumed that you knew of the matter and perhaps had control over it.
Despite the assumption, wide-ranging evidence has to be produced for you to be convicted. Also, the law under Virginia code 18.2-250.1 specifies that occupancy or rather ownership of the premise or vehicle where marijuana is found should not create an assumption that the person knowingly and intentionally owns the drug. As such, to prove your intentional possession, the prosecution or the arresting officers have to use some factors like suspicion registered on your face.
Generally, to conclude that you possessed marijuana, several laboratory and field tests have to be conducted. Also, evidence needs to be carefully organized coupled with high standard legal procedures.
Penalties for Simple Marijuana Possession in Virginia
The charges and penalties for simple marijuana possession differ depending on whether it is your first or second and subsequent time. For instance, a first-time offense will result in a misdemeanor charge whose penalties comprise of a jail term not exceeding 30 days or a fine of five hundred (500) dollars. You may also receive both a jail term and fines. A second and subsequent offenses result in a class one (1) misdemeanor charges. The penalties include a jail term of twelve (12) months, a fine of two thousand five hundred (2,500) dollars, or both the fine and jail term.
Hashish oil is classified in Virginia as marijuana in liquid form. Hence, if you are charged with possession of any given amount of the oil, your license will be deferred instantly, and a fine of two thousand five hundred (2,500) imposed on you — furthermore, your face a one (1) to ten (10) years prison term.
Unlike possession of actual marijuana, charges and penalties for the possession of synthetic marijuana are significantly harsher. For instance, a first-time possession can land you into a class one (1) misdemeanor offense that is punishable by not more than twelve (12) months jail term. More severe is the ownership of PWID synthetic form of marijuana; this offense is treated as a felony whose sentence goes for a maximum of five years. Besides the sentence, your license will also be suspended for six months.
Although the state of Virginia does not recognize marijuana to have a legit medical application, an exception is given to Cannabidiol, also called THC-A oil. This is because Cannabidiol does not contain any psychoactive characteristics; thus, its possession is not illegal. Also, Virginia law under VA code 18.2-251 permits the distribution and possession of marijuana on the grounds of medical use. Under this legal provision, you will not be prosecuted if you possess or dispense the medicinal derivative of marijuana so long as you are in the line with your medical profession.
In some cases, the judge may use the Virginia code 18.2-251 to subject you to a lenient punishment referred to as a ‘first offender program’ if it is your first-time offense. The plan consists of some tasks and condition which, upon your completion, will have your marijuana possession charges dismissed. Some of the conditions include refraining from any new crime, participating in a twenty-four (24) hours of community activities, paying the necessary court fines, and surrendering your driving license for a six months suspension. During this moment, you will be allowed to apply for a license and you may be given a restricted driver’s license. The license, however, limits you to just driving to a workplace, medical facilities, or school. Violating any of the conditions tied to the document lands you with more charges. In addition to the probation conditions, you will be required to undergo drug treatment and evaluation programs.
To qualify for this opportunity, however, you must not have committed any drug-related offense, no drug-related charge leveled against you has ever been dismissed, and the court should have gathered sufficient evidence to confirm that you were guilty of the charges. Moreover, you must have consented to the charges and consequently pleaded for pardon. Even though the charge will be dismissed, it will not be removed from your criminal records; hence, your future offense will be treated as a second-time crime. Also, if you violate any of the probation condition, a guilty verdict will be entered against you and the sentencing will be based on the initial charges.
Can I Have a Simple Marijuana Possession Conviction Expunged from My Record?
It is unfortunate that even after the court has dismissed your first marijuana possession charges, the record will still appear in your criminal background check. Such an appearance may affect your future employment and academic endeavors. Furthermore, your immigration chances will be hampered if you are a non-citizen, and hence, there is a need to have them expunged completely. Virginia allows expungement of such records and begins with the defense attorney reviewing your alleged case to establish if you meet the requirements for the expungement option. Then, you are required to file/write a petition to the court. Upon the court’s acceptance to expunge the charges, the charges will be deleted from any public access permanently.
Possible Legal Defenses for Marijuana Possession in Virginia
Charges related to marijuana possession are generally harsh especially if it is your second or subsequent conviction. You should look for an experienced attorney to represent you in maneuvering through the legal procedures. The attorney might be able to have the charges entirely dismissed or penalties significantly reduced by using some of the following defense strategies:
- Illegal search and seizure. You can claim that you, your vehicle or house was illegally searched by the arresting officers. You can also claim that there were unconstitutional stop and search grounds. Also, for an officer to search you or your property, he or she should seek your consent. If that was not done, then you can use this unauthorized search to your defense. This defense strategy mostly applies where the officers had no warrant of arrest either. If you can convince the judge or jury on such grounds, the simple marijuana possession charges can be entirely dismissed despite bulky evidence.
There are two exigent circumstances under which an officer can conduct a search and possible seizure upon you: where there is reasonable doubt or suspicion and whenever there is a probable cause of search and seizure. The latter can force or propel the police to conduct a full-blown search in your house or vehicle. Therefore, when you feel that such conditions were not observed, you should demand a legal explanation.
- Defense against constructive possession. If marijuana was found somewhere besides your pockets or pants, you will be accused of constructive possession. The drug might have been found under a seat in your car, at the boot, consul, seat pocket, or even in the backpack. If this is the case, you should challenge the prosecution by arguing that though the drug was within your proximity, you didn’t know about it and that you were not the owner of the substance – perhaps, someone left it. Strive at challenging the officers to provide enough proof that the drug was yours. In the event of insufficient evidence, you can refute the charges and possibly have them dismissed.
- Wrong laboratory and field test procedures. Field and laboratory test are usually conducted to determine the truthful nature of the substance that you are accused of possessing. Your attorney will look into the tests to see how they were performed. As a result, the attorney can conclude that such procedures were not correctly adhered to, and hence, the results are unreliable.
- Lack of knowledge and intent to possess the drug. Among the fundamental elements that the prosecution must prove for marijuana possession charges are the presence of awareness and intention. You can claim that the nature of marijuana is unknown to you and that you possessed it without any intent of possession.
Charges Related to Simple Possession of Marijuana in Virginia
Marijuana possession charges in the Commonwealth of Virginia are comprehensive; hence, there are other crimes which you can be charged alongside or instead of simple marijuana possession. Some of the charges could imply either lenient or harsher penalties as opposed to your initial charge. They include:
- Virginia Code 18.2-248.1; possession with intent to sell, gift, or distribute Marijuana
Unless authorized by the commonwealth’s drug control act, nobody is allowed to trade, gift, distribute, or possess marijuana with the intent to distribute, sell, or gift the substance. If you are accused of violating this statute, with less than one-half ounce of the drug, you will face class one misdemeanor charges. The possible penalties are two thousand five hundred (2,500) dollars as fines and/or a jail term of twelve (12) months. If the amount exceeds one-half ounce but does not go beyond five ounces, you will be subjected to a class five felony whose prison sentence include between one and ten years. But depending on the judge’s discretion, the offense can be treated as a class 1 misdemeanor. Where the amount of marijuana in question is above five ounces, you will be guilty of a felony whose penalties include a prison term of between five to thirty years in prison.
- Possession of drug paraphernalia
Virginia code 18.2-265.1 describes drug paraphernalia as any implement, equipment material, or product of any kind that in a way, is likely to be linked to drugs and substance abuse. The equipment could be used for planting, manufacturing, preparing, propagating, analyzing, or packaging the drugs. The tools could also be used in administering the controlled drugs into one’s body. The law prohibits such devices which may include testing apparatus, balances, and scales, bowls, blenders, syringes, or even mixture-separating equipment.
Virginia code 54.1-3466 further makes it a crime to possess needles and syringes whose function is to administer drugs. The law also prohibits possession of packaging and repackaging equipment such as envelopes that indicate an intent to distribute marijuana. Code 18.2-265.3 further prohibits possession of the paraphernalia with a view of distributing or selling them. If you are found with the intention to sell a material of such kind with the awareness that the buyer intends to use in activities related to the drug, then you are guilty of class one (1) misdemeanor. Similarly, if you are eighteen (18) years and above and accused of selling the material to a minor who is not less than three years younger than you, you will be guilty of class six (6) felony. You may also face a class one (1) misdemeanor charge if you distribute the drug paraphernalia to an individual aged below 18 years
- Cultivation or possession of Marijuana with the main aim of cultivating
If you are accused of possessing marijuana with a sole reason beyond your consumption, you may be subjected to felony charges. The penalties will range from an imprisonment term of between five (5) and thirty (30) years and a fine not exceeding ten thousand (10,000) dollars.
Find a Drug Possession Attorney Near Me
In Fairfax, VA, and the greater Northern Virginia area, people who are charged with simple possession of marijuana have been relieved by the competent representation of Virginia Criminal Lawyer. If you are facing a similar or any drug-related charges, don’t wait to be convicted. Seek immediate legal representation by contacting 703-718-5533.