If You Were in a Room With People Smoking Marijuana Can You be Charged With Possession?

UPDATE: Virginia decriminalized simple possession of marijuana on July 1, 2020. Click here for details.


Virginia law says that you cannot possess marijuana. What exactly does possession mean and how much do they have to have to prove the case? That’s really what this type of scenario involves. In many cases if people are in a room smoking marijuana there’s going to be obviously some amount of marijuana. They’re going to have a joint, a bong, some grinders and some different paraphernalia items as well. There’s going to be marijuana in the room if you’re actively smoking it. But can you be charged with possession if the other people are the ones smoking it?

It’s going to depend upon the specific facts of the case and this is why you need to call me for free case strategy session so we can look at the facts appearing in each situation. In general a possession of marijuana case can be proved by what we call constructive possession.

The basic rule for constructive possession is that in order to be found guilty of possession of marijuana if you didn’t have it actually on you in person or in your pocket, the Commonwealth has to prove that you knew the character and nature of the substance. They also have to prove that you knew that it was marijuana and that you exercised some dominion or control over it. So basically you aren’t just in the room but you actually have the control over the substance.

Note that this does not require that it be found on you or even necessarily near you. If you admit that you brought marijuana there or that it is your house, I think the Commonwealth has a pretty decent case of arguing that you were in control. If people are in your home or your hotel room smoking marijuana, you in a way, invited the substance in. I think that would be an argument that you were in control of that substance, even though you didn’t physically touch it.

It is a different scenario if you’re at a party at someone else’s house and you just happen to be in the room when the police bust the party and there’s no proof that you ever touched the marijuana or had anything to smoke at all. If you deny completely smoking and nobody incriminates you, then I think it’s a strong case to fight.

Andrew Flusche

My name is Andrew Flusche. I am a traffic and misdemeanor defense lawyer in Virginia. I limit my practice to traffic tickets and misdemeanor defense, so I know the ins and outs of these offenses. I literally wrote the book on reckless driving in Virginia which you can get on Amazon here or download for free here. I opened my practice in 2008 after earning my Juris Doctor degree from the University of Virginia School of Law. Since then, I have earned over 600 5-star reviews from happy clients on Google, Yelp, and Facebook. If you’ve been charged with a misdemeanor offense in Virginia, please don’t hesitate to contact me. Your initial consultation is always free, and you'll talk directly with me about the details of your case.

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