Last updated on February 19th, 2019
Andrew: We are live. No delay this time. Facebook is finally cooperating.
Andrew: All right! So it’s Wednesday—
Jennifer: It is.
Andrew: It’s almost Christmastime, so what better to talk about than drugs?
Andrew: So today for Law Talk, we’re just sort of generally going to talk about possession, and specifically, marijuana possession in Virginia, just because it’s been a pretty hot-button issue over the last year or so, because a lot of the laws have been changing, and all this other kind of stuff has been happening.
Andrew: Yeah, so I have Jennifer here today—
Andrew: And I guess, to begin, we can talk about what controlled substances are in Virginia, just because that’s an important distinction for understanding where the laws are coming from. So do you want to just talk to that a little bit, of what makes something illegal in Virginia, as the law looks at it?
Jennifer: Right, so it’s mostly, if you think about any sort of drugs that you would need a prescription for, then that would likely be considered a controlled substance. There’s scientific reason behind the drugs that are considered controlled substances under the law in Virginia. It generally has detrimental effects to your health, and it probably has certain consequences or certain side effects that would cause you to either become a harm for yourself or for others, so it’s more of a public health and safety concern than anything else, and that is why they would be drugs such as cocaine or heroin.
Jennifer: If you think that you might need a prescription for it, then it’s going to be a controlled substance, most likely.
Jennifer: And there is actually a list. The code provides a list of what would be considered a controlled substance.
Andrew: It’s a really long list.
Jennifer: It is! Yeah, and the reason for that is that punishments may vary, based on what type of substance it is. So if it’s a Schedule I or 2 substance, the punishment is going to be harsher than a different classification or schedule of the drug. So it really depends on how hard the drug is.
Andrew: Yeah. ‘Cause I know a Schedule I drug is, like, heroin or something, whereas the lower schedules are things like misusing pain pills or something. It varies widely across the different schedules.
Jennifer: It does, and that’s also something that is used in the defense. If it’s something like misuse of painkillers, there’s probably a defense there, or a narrative that goes with the misuse in and of itself, so that narrative would play a part into the defenses for the crime that you’re charged with, but basically there is a scientific reason for labeling certain drugs as ‘controlled substances,’ and the legislature is aware of that, and that is why they have a very extensive list, like you mentioned, and the code to determine what would be considered a Schedule I or II controlled substance.
Andrew: Yeah. And that’s sort of where marijuana and all of its derivatives comes into play. Because marijuana itself, as well as everything that comes from it … for example, I think it’s THC oil, all the derivatives and stuff … all fall under this list, and are penalized according to where they fall on the list.
Andrew: And what I think is sort of interesting is, with marijuana specifically, it’s obviously a hot-button issue right now, but there is sort of a range of how you can punish it. So in recent years, Virginia has added an extra tack-on law where they’re like, “Yeah, if we charge you with marijuana for the first time, we’re not gonna throw the book at you.” If I remember correctly, it’s like they’ll give you a $500 fine and possible jail time.
Jennifer: It is, yeah. So the pot, the code defines it as it would be a misdemeanor, and the possible jail time is up to 30 days and up to a fine of $500, and that would be considered a U misdemeanor, and that’s just essentially unclassified misdemeanor.
Andrew: Yeah. And that’s for a first offense, that’s not for repeat offenders.
Jennifer: Right, yes. For a second offense, that would be a Class I misdemeanor.
Jennifer: Although the court won’t throw the book at you, it really does depend on how much you had, although possession of marijuana doesn’t have an amount requirement. Just you possessing marijuana will be enough for that charge.
Jennifer: The amount will play a role when the commonwealth is reading the summary of the pacts, when the judge is hearing this, that will play a role in whether they decide to throw the book at you or not. And it might also play a part into whether the commonwealth will charge you as simple possession, or whether there’s enough there to assume that you are actually selling the stuff, so you might instead get a distribution charge.
Jennifer: So again, possession of marijuana doesn’t have an amount requirement, but that might play a part, as far as what the court decides to do with your case.
Andrew: And I think that’s really an important distinction that a lot of people don’t seem to really realize, is when you’re first arrested, it’s not like they’re like, “These are all the charges we’re gonna charge you with immediately.” It is, they collect the evidence and stuff, and then the prosecution or the state will be like, “Yeah, based on these facts, we’re gonna charge you with this, this and this, and this.”
Andrew: So for example, like you said, if you have any amount of marijuana, you’re gonna get a possession charge. But if you have a five-pound baggie of marijuana in your car, there’s probably going to be a distribution charge on top of that as well.
Jennifer: Right. Right. Again, it just really depends on what the facts are.
Jennifer: And just to go to possession, you mentioned that if they find it in your car, that could be considered constructive possession, so that’s something that we see in court a lot, where the defendant has been arrested, they were driving their own car, the officer had strong smell of marijuana, or they sense a strong smell of marijuana coming from out of the car. They arrest the defendant and they charge them with possession of marijuana. Then they get to search the car, and they find that baggie.
Jennifer: A lot of people say, “Well I didn’t know that was there,” or, “Someone else was in the car and I didn’t know that that was there.” That’s where constructive possession comes into play, and the commonwealth could prove their case against you. Because it’s your car, depending on where it was found, if it’s within your control, you’re going to be presumed to have knowledge of it, because it is your car. So that’s why any sort of possession charge, you should really discuss it with an attorney, because that’s very fact-specific, and depending on the case, there are different defenses.
Andrew: Yeah. I think that’s a good thing to get into now, since we’re already on this topic, is how could you fight a marijuana possession charge? ‘Cause you mentioned constructive possession, so for example, if you are a passenger in someone’s car and they’re arrested for marijuana possession, you might be as well, because the state could say, “Well, you knew that it was there,” or, “You were complicit in it,” or whatever. There’s a whole bunch of various fact-specific things related to the arrest, and everything that goes around it, that when you hire an attorney, they can sort of argue against.
Andrew: So for example, like probably cause, like arrest procedures. There’s a whole bunch of stuff related to it. So you may wanna speak to that. Like, possible defenses related to—
Jennifer: So, like we’ve been talking about, that is going to be very fact-specific. If you’re found with the marijuana on your person … if you have it in your pocket, or if you have it inside your shoes … then that’s a very clear case that you did possess marijuana. If that is your first offense, then there’s something called the First Offender Program, and if you qualify for it, then you might be enrolled in the program and what that does … that you comply with probation, so random drug testing … you have to do some community service and be on good behavior, which means no new offenses.
Jennifer: And whatever else the court decides to impose. And then upon completion of that, a year after … the courts generally extend it to a year … the next court date then will be, if you have complied with all those requirements, then your case will be dismissed.
Jennifer: Now, a lot of people think that that’s a great option, and it is, but it really depends on what the client wants.
Jennifer: If the client absolutely wants to keep their driver’s license, then the First Offender Program is probably not a good fit. That is the client’s priority, because with the First Offender Program, there is a six-month license suspension that comes with it. And if the person is also a non-U.S. citizen, there are immigration consequences that could come from that, so that defense would be very fact-specific, and the attorney would have to discuss with the client to see whether that’s a good fit.
Jennifer: If the client’s goal is to keep their driver’s license, then we could try to amend the charge to something else, but we would have to figure out what the consequences from that amendment would be, so a second defense would be trying to amend the charge to a different offense that would fit the facts of the offense, or it could be a charge that we could see that the commonwealth would be willing to amend it to.
Andrew: Yeah. And I think one interesting thing about the First Offender Program is that it’s not technically pleading guilty, but it’s sort of like you nodding at the court and being like, “I sort of know I’m gonna be guilty, you know I’m gonna be guilty, but we’re gonna defer the court proceedings and stuff until I complete this program.” So it’s like, “I’ll come back in a year, and if you see that I’ve been good and completed the program, you’ll just drop the charges.”
Jennifer: Well actually, a requirement for the First Offender Program is that you plead either guilty or that you plead no contest—
Andrew: Oh, okay. Yeah.
Jennifer: Which would be, essentially, “The state has enough facts against me to find me guilty, but I’m not pleading guilty.” Or you just submit to the sufficiency of the facts. And that is actually why the First Offender Program, depending on the amount of marijuana that was involved in the case, might not be a good fit if you’re a non-citizen.
Jennifer: So that is very important to figure out, in terms of if you’re not a citizen, that’s very important to schedule an attorney to figure out whether the First Offender Program would be a good fit.
Andrew: I think I just got it mixed up in my mind where they’re deferring the actual sentencing, not the guilty plea itself.
Jennifer: Right. Right. So let’s say that you successfully complete the program. At the end of the day, you’re right, it will be dismissed, if you have complied with all of the requirements that the court has imposed, but it’s important to know that it’ll still show up on your record. It’ll show up on your record that you have a possession charge, and then in the disposition, it will say ‘dismissed.’
Jennifer: But it’ll still come up on a background check.
Jennifer: So that’s very important to know. Even if you enrolled in the First Offender Program.
Andrew: All right. So what are some other options that people charged could have? So for example, I know we recently had a really good article on plea deals and stuff like that, which aren’t the best things, but it’s definitely a viable option that a lot of people in the situation take. So you may wanna speak to them a little bit, and how that fits into the equation.
Jennifer: Right, so if the charge can’t be amended, then the next step … assuming that all the steps that the law enforcement officer took against you … so the search, the seizure … by ‘seizure’ I mean your arrest … if all of that is fine, if there are no issues, and we literally have no defense against this, then we would try to mitigate the sentencing. So try to figure out if you are to get jail time, try to work with the commonwealth to see whether we can reduce the amount of days that you get in jail, or the amount of time that you receive, figure out if we can balance jail time with community service, and that way we can just diminish the amount of time that the person’s incarcerated for.
Jennifer: And that would be probably, if the commonwealth has a case against you and the facts are essentially screaming that you did it, or that you were in possession of, for example, marijuana, then that’s what we would try to do if we can’t attack the arrest.
Jennifer: Or the initial stop, if you were in a car.
Andrew: Mm-hmm (affirmative). Yeah, ’cause it’s basically an agreement between the prosecution and the defense, that … “We can make this go quicker and have a better outcome for everyone,” so that’s the main incentive that they want, is, “We don’t wanna deal with this in court for another couple months.”
Jennifer: Right. And I will say, though, that that depends on the jurisdiction, so that’s very important that you speak with someone who practices in that jurisdiction. Because it could be the case that the judges might not be amenable to hearing that there has been a plea deal. Some judges like to have control over their courtroom, and they might … if it’s not the local practice for judges to allow prosecutors to, or to limit the prosecutors’ ability to enter into negotiations, in terms of punishment, then that might be something that cannot be achieved.
Jennifer: When it comes to criminal charges, then you need to have realistic expectations of what could happen in your case, so that’s why it’s so important that you speak with someone who knows the local practice.
Jennifer: Of course, the commonwealth could recommend that the person is sentenced to a certain amount of time, but at the end of the day, it’s up to the judge whether they want to accept that recommendation or not.
Andrew: Yeah. I think that’s a really important point, because you really do need to go and talk to a lawyer early, just to get, “What are my options? What defenses could I have? If I don’t have a defense, what can I do to lessen the penalties from this?” ‘Cause it’s a very big deal. It’s something that’ll affect you for a very long time.
Andrew: So you definitely wanna get it right and stay on top of things.
Jennifer: Right, and I get it. It really depends on the client’s expectations and what it is that they want. What I think would make sense, and what would be the best outcome, might not be what the client would actually want, and you have to think about the collateral consequences that could stem from a finding of guilt. If you want to go to college, or you’re in college, there might be issues with you having a finding of guilt and a possession charge, so housing could be an issue.
Andrew: Losing your license is a big one.
Jennifer: Exactly. The license is probably the biggest one, especially here in Virginia, where public transportation is not super friendly.
Jennifer: So there could be, also, employment implications. So all of that are things that you need to think about, and that people sometimes just think about the immediate consequences, but attorneys will help you consider those long-term consequences.
Andrew: All right, so I think that’s about all the questions that I had. Are there any common questions that people ask you about it, or any final thoughts you wanna give on either marijuana possession, or just controlled substances in general in Virginia?
Jennifer: Well, as I usually say, and what I think we say every time that we talk about criminal defense … just, you get stopped, or whatever interaction you have with a law enforcement officer, your best bet is just to be quiet. Just don’t speak with them, exercise your right to remain silent, because that could really help, then, your attorney on the defense side to just have something to argue. But if you admit to having had marijuana before in a span of 20 minutes, then that can really hurt you.
Jennifer: And whatever arguments we may have, in terms of the arrest or the procedure of the search or the stop, that could really have a negative impact on the defense. So just stay quiet.
Andrew: Yeah, stay quiet.
Jennifer: That’s probably the best advice that I can give someone.
Andrew: All right, cool! That’s about it for today. So thanks for coming on again, and we will see everyone at the same … oh, no! We won’t! Because it is Christmas next week, I forgot!
Jennifer: It is! Happy Holidays!
Andrew: Yeah, so we’ll be off next week, and then we’ll probably be coming back the week following.
Andrew: So, all right. Thanks, everybody.