Possession of Marijuana in Virginia » How to Beat Possession Charge

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

Possession Laws in Virginia

Virginia code 18.2-250.1 makes possession of marijuana a Misdemeanor offense. First offense convictions carry potential jail time of up to 30 days and fines of up to $500. Second-time offenders face a Class 1 misdemeanor charge and can be punished by jail time of up to one year and a fine of up to $2,500.

Possession of Marijuana Penalties and Charges

Offense: Possession of Marijuana, 1st
VA Code: 18.2-250.1
Classification: Class U Misdemeanor
Max Jail: 30 days
Max Fine: $500

Offense: Possession of Marijuana, 2nd
VA Code: 18.2-250.1
Classification: Class 1 Misdemeanor
Max Jail: 12 months
Max Fine: $2,500

OffenseVA CodeClassificationMax JailMax Fine
Possession of Marijuana, 1st18.2-250.1Class U Misdemeanor30 days$500
Possession of Marijuana, 2nd18.2-250.1Class 1 Misdemeanor12 months$2,500

How to Beat a Possession Charge in Virginia

How to beat a possession marijuana charge in Virginia

WATCH: Defenses for Beating a Possession Charge in Virginia

If you’ve been charged with possession of marijuana under VA 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:

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If you’ve been charged with possession of marijuana, contact Virginia defense attorney Andrew Flusche today to discuss your options.

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Possible Defenses to Prove Possession of Marijuana Charge

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 of Virginia 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!

Paraphernalia Charges

WATCH: Amend Virginia possession of marijuana to drug paraphernalia

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, the residue can be enough.

Simple Possession of Marijuana

WATCH: Virginia possession of marijuana: A little bit is enough

One thing people tell me a lot of times when I’m talking to them about a possession of marijuana case is that they just had “a little bit” of marijuana. They’ll say “it was less than half an ounce” or “it was just a tiny bit” or even, “it was just a seed/piece of stem.”

The unfortunate news is for a simple possession case in Virginia, the amount of marijuana really is irrelevant. All that the Commonwealth has to prove is that you had some marijuana.

In some cases, that marijuana can simply be residue in a grinder or a bowl or something. As long as they can run a lab test on the residue and it comes back positive for THC, then that essentially proves the elements of the actual marijuana. They don’t have to prove some certain amount.

Possession of Marijuana

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!

You don’t have to own the marijuana

WATCH: You don’t have to own the marijuana to be charged with possession

In possession of marijuana cases, a common thing I hear is “The marijuana wasn’t mine.” I’ve heard this in court, and I’ve heard it when I talk to people on the about their case. A lot of people are hung up on the idea that if they didn’t own the marijuana, they have a defense in the case.

The problem with that argument is that Virginia law actually criminalizes possessing marijuana. All the Commonwealth has to prove is that you were in possession of it. They don’t have to prove who the actual owner of it was.

A good analogy is a car: I own my car; I have the title to it, and it’s my car. But I could loan my car to you, and you would be in possession of my car. Or, several people could all fit in my car together, and in a way, we are all in possession of the vehicle.

If there are several people in the car with marijuana and everybody is smoking the marijuana, it’s pretty clearly a case of everybody being in possession of marijuana, even though maybe one person bought it and brought it to the car, everybody could be found guilty of possession of marijuana.

“Constructive Possession”

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.”

Constructive possession 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.

1st Possession Charge in Virginia

If the Commonwealth can prove that you possessed marijuana, there’s still hope. Under VA 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 possession of marijuana charge completely. It’s a great opportunity for a second chance.

What is the Virginia marijuana first offender program?

If you’re charged with possession of marijuana in Virginia, and this is the first time you’ve been through this situation you may be eligible for what we would call the first offender program.

This program is enabled by statute, which means it’s based on in the law in Virginia. However, the specifics can vary a little depending on the court you’re in. This is why you definitely should contact a local attorney like myself. I can go over the facts of your case and determine whether or not you may be eligible for the program, as well what the program will entail specifically.

In general, the first offender program consists of you doing some community service. Being on good behavior which means no new trouble. Complying with drug screens and staying clean. At the end of the program if you do everything successfully the case should be dismissed.

As you can see it’s a great option to try to get the charge removed from the record as a conviction. However, you need to keep in mind that the fact that you are accused of marijuana will remain part of your record, so the charge does not disappear from the record. However, it would be listed on your record as a dismissal.

The other point of the First Offender Program to keep in mind is that if you enter the First Offender Program your license is suspended for six months. A lot of people want to avoid this license suspension which is one reason that we try in some cases to get the charge amended to a different offense where there would be no licenses suspension.

If you’re considering trying to get the First Offender Program or you’re even just charged with Virginia possession of marijuana, definitely contact me today so we can discuss all the details of your case.

Further reading on Virginia marijuana possession:

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