If you’ve been charged with possession of marijuana under Virginia Code 18.2-250.1, you need to talk to a defense attorney ASAP. You may be able to beat the charge or at least be eligible to have it dismissed with community service.
There are several angles for us to examine in any possession of marijuana case:
Marijuana
First of all, the Commonwealth has to prove that you had marijuana. In many cases, this is rudimentary.
Typically the substance is proven to be marijuana with a field test done by the arresting officer. But to use the field test results in court, the Commonwealth has to give you a notice that you have the right to ask for a lab test of the substance.
If you have a lab test done and the lab says the substance isn’t marijuana, that’s good news for us!
One issue you may be wondering is why you’re charged with marijuana possession when you only had paraphernalia. Usually the Commonwealth is claiming that there was marijuana residue on the item. Since the law doesn’t require any specific amount of marijuana to be convicted, residue can be enough.
Possession
If the Commonwealth can prove that there was marijuana, can they prove that you possessed it?
The easiest way for the Commonwealth to prove this is if you had actual possession of the substance. If the police found a baggie in your pockets, there’s not much argument for us to make that you didn’t possess it. The other way we get nailed on possession if you make admissions about the substance. In other words, keep your mouth shut!
The cases for us to examine closely are where the substance was found somewhere nearby. For example, the police might have found something in a car where you happened to be riding. The Commonwealth tries to tie you to the marijuana with “constructive possession.” This is a legal doctrine that essentially means you knew of the presence and nature of the substance and exercised control over it.
Constructive possession can be hard for the Commonwealth to prove if you didn’t make any statements about the substance. They try to prove it with things like: ownership of the vehicle in question, proximity to the substance, suspicious behavior, etc.
The rules here are very fact-specific, so it’s definitely something we need to talk about. And even still, the result can depend upon the particular judge we get.
Search and seizure
Search and seizure issues present a completely different line of attack on marijuana possession cases. Any evidence found as a result of an illegal search or seizure can be kept out of court. Needless to say, we need to carefully analyze any search or seizure in your case.
First offender
If the Commonwealth can prove that you possessed marijuana, there’s still hope. Under Virginia Code 18.2-251, if this is your first offense, you may be eligible to have the charge dismissed.
To get that outcome, the judge gives you six months to do several things:
1. Have no new offenses.
2. Perform 24 hours of community service.
3. Undergo a substance abuse evaluation and any required treatment.
4. Have your license suspended during the six months.
5. Pay court costs.
If you do all of that successfully, the judge would dismiss the charge completely. It’s a great opportunity for a second chance.
Call today
This article only brushes on defending a possession of marijuana charge. There are many issues to analyze and angles to pursue. It’s critical to call today for a free consultation.
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