I talk to countless people about their possession of marijuana charge and in many instances one of the first things I hear is that the marijuana wasn’t theirs. Unfortunately, that’s a losing defense.
Let me add the caveat that every case depends on the facts and circumstances of each unique case, and it could work depending on the facts of a case. However, it’s usually a loser.
The problem is that the Commonwealth has to prove that you were in possession of the marijuana. They don’t have to prove that it was legally your own marijuana, and that’s a big difference. If you think about it this way: I own a bicycle, it’s my legal bicycle and I have legal title to it. However, I can loan you the bicycle. When I loan you the bicycle to ride, you would be in possession of the bicycle. Everyone understands and agrees with that; however, it’s still not your bicycle. That’s exactly the situation we have with marijuana. They don’t have to prove that it was yours. They just have to prove that you were in possession.
What does possession mean for marijuana in Virginia? It’s a good question, and it’s one that gets quite complicated legally speaking. The basic rule is that you have to have knowledge of what the substance is and you have to have dominion and control over the substance. Knowledge is the easy one that people understand. That means that there is some indication that you know it’s marijuana. That can be proven based on it looking like marijuana or based on your statement or prior evidence that you’ve smoked before perhaps. Dominion and control is the part that’s a little tricky for the Commonwealth to prove. That’s where they have to show that you had some control over it that you were able to exercise your dominion over the marijuana. This is where we might have an actual winning defense, but just claiming that the marijuana wasn’t legally your own isn’t going to get us anywhere.
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