While we can debate about the ethics behind arresting people for the possession of marijuana, the reality is simple: it’s still illegal in Virginia, and you will be facing a misdemeanor charge if you don’t have a prescription from your doctor. If you have a prescription but your doctor is out of state, that prescription is considered invalid in the state of Virginia. Despite individual states making their own decisions about the legality of marijuana, it is still federally illegal. Any movements occurring between different states is under federal jurisdiction- traveling over state lines with marijuana can open you to federal criminal charges, as well as local state charges for its possession.

Under Virginia law, marijuana is considered to be a controlled substance. The designation of controlled status is determined by the Virginia Board of Pharmacy in conjunction with the Department of Forensic Science, as well as the schedule under which the substance falls. Schedules are designations for controlled substances that determine the way that the legal and judicial systems interact with these substances, including what punishments could potentially be imposed, in what contexts the substance can legally be consumed, whether or not the substance can be prescribed by a physician, etc. There are 6 different schedules in total, with Schedule I carrying the strictest restrictions.

The factors used in considering the scheduling of a controlled substance, pursuant to Code of Virginia §54.1-3443, are as follows:

  1. The actual or relative potential for abuse;
  2. The scientific effect of its pharmacological effect, if known;
  3. The state of current scientific knowledge regarding the substance;
  4. The history and current pattern of abuse;
  5. The scope, duration, and significance of abuse;
  6. The risk to the public health;
  7. The potential of the substance to produce psychic or physical dependence; and
  8. Whether the substance is an immediate precursor of a substance already controlled under this article.

Schedule I substances are considered to both have no accepted medical use as well as a high potential for abuse. Marijuana depending on its form may be considered a Controlled Substance Schedule I under Virginia law, along with heroin and the psychedelic drug lysergic acid diethylamide (LSD).  In 2019, a law was passed in Virginia which decriminalizes a valid prescription by a physician, a pharmacist dispensing the substance when used for cancer and glaucoma.   It will be interesting to observe the ramifications and fallout of this new legislation.

What if I Get Caught?

If you get caught possessing marijuana, the good news is that it is unlikely that you will be facing felony charges, provided there are no existing aggravating factors, such as the illegal possession of a firearm. For a 1st offense of simple possession, under Virginia law, you cannot be given a sentence of more than 30 days in jail and a fine larger than $500 for your first offense. However, this isn’t to be taken lightly, as any subsequent offenses bumps the charge up to a Class 1 misdemeanor. Class 1 misdemeanors, depending on the circumstances, can impose much harsher sentences and/or fines. Prior to and at the trial date for your charge, your criminal defense attorney may shape a defense to win the charge.   The other option is for your criminal defense attorney to negotiate with the prosecution (the Commonwealth Attorney), to amend the charge and to reduce the potential consequences of your sentence.

What if the Marijuana Wasn’t Mine?

Part of the Virginia Code’s statute regarding the possession of marijuana involves proving what’s called constructive possession. Constructive possession is the backbone of drug possession arrests, as it establishes that the marijuana was in your possession. In Hambury v. Commonwealth, the Court ruled that constructive possession could be proven if the marijuana was known to and subject to the dominion and control of the accused. For example, if you are pulled over and the police find marijuana in your center console, it will likely be assumed that you knew the marijuana was there. That satisfies the requirement that you most likely knew about the presence of the marijuana, and the fact that it was found in your vehicle establishes that the marijuana was in your immediate surroundings and control.

Just being near marijuana is not enough to convict you of possession, but it is considered when weighing the circumstances of the situation. In order to prove constructive possession, a variety of factors are examined in weighing the situation. Additional evidence such as strange behavior and/or any statements made to the police, when combined with marijuana found at the scene, can be combined to make a case against you establishing constructive possession (Wells v. Commonwealth, 32 Va. App. 775, 2000).

In order to convict you for the possession of an illicit substance, the prosecution is required to prove that you were aware of the presence and character of the drugs, and that you had knowingly and consciously had them in your possession (Wells v. Commonwealth). As discussed above, this would require a look into the entirety of the factors of your arrest, from the possession itself to your behavior, comments made to the police, and/or any additional comments made within earshot of the police. Police often joke about the defense that the marijuana “wasn’t mine,” however, there are cases in which people have been arrested for the possession of marijuana that they truly did not realize was in their vehicle. It is essential that you be honest with your defense attorney so that they may help you to the best of their ability.

Did the Police Search Me Illegally?

This is a more complicated question than it may seem on first glance. The 4th Amendment of the Constitution of the United States contains the most important part of examining the legality of a search: probable cause. You cannot be arrested or detained without it, and any evidence secured from a search determined to be illegal will be inadmissible in court (Commonwealth v. Cooper, 68 Va. Cir. 515, 2004). In Illinois v. Gates, the Court said that probable cause is a “practical” and “non-technical” standard that lends itself to any reasonable interpretations of a situation by the authorities. Back to the vehicle example from before. If the officer smelled marijuana coming from your car, and then saw you throw a baggie out of your car window, he can reasonably assume that you are/were in possession of marijuana and conduct a search of both your person and vehicle. There are some caveats to this, however, and you should not assume that you are aware of the legality of a search without first speaking to an attorney.

You are entitled to refuse a search, however, a search of your vehicle can be conducted anyway if a police K9 unit is dispatched, and the dog responds to any part of your vehicle. In one particular case, it was determined that the police were legally entitled to search the occupant of a vehicle because 1) a K9 dog had alerted the officer to the presence of narcotics in the car and 2) a trained narcotics officer recognized some residue on the floor of the vehicle as being marijuana resin (Williams v. Commonwealth, 2017 Va. App. LEXIS 83). The legality of a search and/or arrest is always considered amongst the entirety of the factors at hand, as mentioned in the section above.

 In this situation, an officer would be acting perfectly within the law to search your car, as the “hit” indicated by the dog is enough to establish probable cause that you may be in possession of marijuana and/or any other narcotic illegal in the state of Virginia. If an officer has been provided with enough evidence that you have committed a crime and officially places you under arrest, your 4th Amendment rights against search and seizure no longer apply, and the police are within their rights to search your vehicle, frisk you, and remove anything that may be in your pockets.

As for a residence, the police cannot search your home without a search warrant. It is not advised that you voluntarily allow the police to search your home, as you may not be entirely aware of every item or substance in your home, particularly if you share your residence with roommates. You cannot refuse entry to the police if they present you with a valid search warrant. During a warranted search of your residence, the police are not restricted to just searching through bedrooms, and some of your things may be damaged or thrown around in the process. The possessions of any roommates, family, spouses, etc. are also subject to search by the police.

Certain types of search warrants can also be issued to allow for tracking devices to be placed on vehicles or to examine the contents of a cellphone or any other such electronic communications device. In order to obtain a search warrant, a police officer must submit a complaint and a sworn document called an affidavit. The affidavit will describe the officer’s reasoning for requesting a search warrant, and the magistrate’s decision to issue a search warrant falls under the same scope of reasoning that they would apply when deciding whether or not to convict someone for a crime. There must be convincing proof that a crime has occurred in order for a search warrant to be issued. If you did not give the police permission to search your vehicle and/or residence, were not arrested, and the police did not have a search warrant, there are avenues for relief, including compensatory and/or punitive damages. These can be explored with your criminal defense attorney.

Some Additional Notes

Virginia courts have asserted that the nature of an illegal substance does not need to be proven by direct evidence (i.e. a field chemical test), but that the type of substance found can be assessed through circumstantial evidence. Here are some types of circumstantial evidence that can be considered: the physical appearance of the substance in question, evidence that the unknown substance was consumed in a manner consistent with an officer’s knowledge of the consumption of a narcotic known to the officer, any secretive maneuvers designed to obscure the presence of the substance, and whether or not the substance was referred to with colloquial terminology for a known narcotic (i.e., words such as “bud,” “pot,” or “tree”).

Additionally, the police are allowed to confiscate any drugs or items that they deem to have been involved in the crime committed. While you can rest assured that the police will not return your narcotics to you, it can be incredibly difficult to have the police return any personal items and/or money seized during your arrest. Through a process known as civil asset forfeiture, the State can also bring a case against your items individually. An example of a case caption would be Commonwealth of Virginia v. $2,500 in US currency or Commonwealth of Virginia v. 2009 Ford Explorer. Forfeiture cannot occur until you’ve had your day in court, however, HB900 (House Bill 900) passed in February of 2018 does allow for civil asset forfeiture even if you are found not guilty, provided that forfeiture is part of a plea bargain or if a request for the return of the property is not submitted within a particular time frame.


Simple marijuana possession, even on a second offense, will still just be a misdemeanor. However, possession with intent to sell, give, or distribute marijuana (sometimes referred to as a “PWID” charge) can be very serious. Except in very limited circumstances, it is illegal in Virginia to sell, give, distribute or possess with intent to sell, give, or distribute marijuana. For the purposes of this section, we will refer to this offense as “possession with intent.” The penalties for possession with intent vary widely based on the amount in your possession:


Level of Offense

Potential Penalty


Less than ½ ounce


Class 1 misdemeanor


No more than 1 year in jail;

Fine no larger than $2,500



More than ½ ounce, but less than 5 pounds


Class 5 felony


Up to a judge and/or jury’s discretion.


More than 5 pounds




No less than 5 years and no more than 30 years in prison.


Growing or attempting to grow marijuana commercially is also a serious offense in Virginia. Under Virginia Code §18.2-248.1(c), any person who “manufactures” or possesses marijuana with the intent to manufacture it is guilty of a felony, the penalty for which being no less than 5 years in prison (but not more than 30 years) and a fine not to exceed $10,000. Subsequent offenses for possession with intent are very serious, with 3 or more offenses of §18.2-248.1 potentially carrying a life sentence.

Two very important considerations that are to be taken into account with a potential possession with intent to sell, give, or distribute marijuana charge are 1) the packaging of the marijuana, and 2) the quantity of marijuana found. While the presence of marijuana in baggies does not establish enough cause to determine intent to distribute, sell, or gift the marijuana, it can be considered when also examining the quantity of marijuana found (whether the amount seemed reasonable for personal use) and the circumstances in which the marijuana was found by the officer (Monroe v. Commonwealth, 4 Va. App. 154, 1987).

Like simple possession, the factors used to analyze whether or not a defendant has possessed marijuana with the intent to sell, give, or distribute are flexible and considered within the framework of reasonableness, established through linking multiple factors suggesting that the defendant has engaged in illegal activity. Another factor considered in possession with intent cases is money found in the possession of the defendant. While the packaging of marijuana isn’t enough to make a case that the marijuana wasn’t for personal use, the packaging plus an unusual amount of money in a defendant’s possession is enough to suggest that the packaged marijuana wasn’t for personal use (Servis v. Commonwealth, 6 Va. App. 507, 1988).


The seriousness of a possession charge is compounded seriously if a firearm is also found in your possession. In §18.2-308.4 of the Code of Virginia, simple possession is compounded to a class 6 felony when combined with possession of a firearm. This sentence carries a mandatory minimum jail sentence of 2 years and is considered to be a separate crime from its individual parts (i.e., there is a possession charge, and then a separate charge for the possession + the firearm). When the amount of marijuana exceeds one pound, the penalty is a mandatory 5 years imprisonment. The legality of the firearm is of no significance, even the possession of a valid concealed carry weapons permit is irrelevant to this charge.

The possession of a firearm also has an effect on possession with intent to distribute cases. Under the same Code of Virginia section cited above, the possession of a firearm along with possession of marijuana with intent to sell, gift, or distribute increases the mandatory minimum jail sentence to 5 years, and anybody in violation is guilty of a Class 6 felony.  A judge after considering all the factors of the crime can impose a strict sentence.

If you are being charged with marijuana possession, please feel free to contact our Fairfax criminal lawyer for a free consultation. 703-718-5533