What Evidence Does the Commonwealth Need to Convict me of Possession of Marijuana?

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

If you are accused of possession of marijuana in Virginia, the Commonwealth must prove beyond a reasonable doubt that you are in possession of marijuana. It sounds simple, but it can be a little bit complicated.

The first word really in the statute that matters is possession. What is possession of marijuana?

The basic rule is that if you have marijuana on you, then that would be in possession. This happens when people are arrested, searched and marijuana is found in their pocket for example. It’s a pretty easy case for the Commonwealth to prove if you are in possession if it’s found in your pocket or in your jacket or something of that nature.

The tricky case is when the marijuana is found nearby. The police have to prove that you were actually in possession of that marijuana. Note that it is not the same as proving that you owned it, or that it was your marijuana. They simply have to prove possession. This is where we get into what’s called constructive possession. They have to prove that you knew the nature of the substance, it was actually marijuana, and that you had some dominion and control over the substance. Just being a passenger in a car, for example, is probably not enough, unless they can tie the marijuana that’s found in the car to you somehow.

How do they prove that it’s actually marijuana?

In Virginia, when they seize marijuana at the scene of an incident, they normally run a field test on it, and that field test will come back either positive or negative. If we do not object to the field test and actually demand that a lab test be done, hen that field test can normally be used to prove that the substance was actually marijuana.

It is your right to have the substance lab tested. In order to use the field test against you, the police officer or the Commonwealth must give you notice about your right to the lab test. If they fail to give you that notice and simply try to go forward with just a field test, we have grounds to keep the field test out of evidence. That can be a great defense for a possession of marijuana case.

This is just a quick summary of a basic possession of marijuana case in Virginia. To discuss the details of your case, what defenses we may have, and what alternate outcomes may be available, give me a call today for your free case strategy session.

Photo by: Dave Kliman

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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