Last updated on May 7th, 2019
Back in 2017, Virginia’s legislature passed a law ending mandatory license suspension for those found in possession of marijuana for the first time.
However, despite this and other changes to Virginia’s marijuana laws, possession remains a serious charge. In fact, a conviction for marijuana possession in Virginia can still lead to significant fines and even jail time.
In this article, we’ll go over what happens after you’re charged with marijuana possession. We’ll also talk about what you can do to achieve the best possible outcome at your trial.
How does Virginia Define Marijuana Possession?
In Virginia, simple possession of marijuana generally refers to the possession of less than one half-ounce of marijuana, or certain marijuana derivatives.
The maximum penalties for marijuana possession in Virginia depend on whether or not you’ve been arrested for it before, and goes as follows:
- If this is your first offense, the state may give you a fine of up to $500. Additionally, you could face up to 30 days in jail, although this is relatively uncommon for simple possession. Finally, in place of suspending your license, the state may require you to perform up to 50 hours of community service.
- On a second or subsequent conviction, possession of marijuana is a Class 1 misdemeanor. It is punishable by a fine of up to $2,500, and up to a year in jail. Additionally, the state will automatically suspend your license for six months.
Note that, unlike some states, Virginia treats the possession of hashish oil differently from marijuana. In Virginia, hashish oil is a Schedule 1 drug. This means that possession of any amount of hashish oil is a felony that could land you in prison for up to ten years.
Possession Vs. Possession with Intent to Distribute
Under the Virginia code, simple possession and possession with intent to distribute are two separate crimes, with different requirements and penalties. If you’re convicted of possession with intent to distribute or sell marijuana, these penalties can be much harsher than a simple possession charge.
On the other hand, proving distribution is much harder than proving possession. This is because, for a distribution charge, the prosecutor must prove that you had the intent and means to distribute marijuana.
Proof of distribution can be as simple as having labeled baggies, to as complex as matching text and call logs to other distributors or growers.
In this way, the state must use corroborating evidence to prove that you intended to distribute the marijuana. For this reason, many defenses in distribution cases rely on proving that the defendant’s marijuana was meant solely for their own personal consumption.
Many possession cases hinge on the actual events of your arrest, which can either help or hurt your defense.
On the one hand, proving that the arresting officer failed to correctly follow Virginia arrest procedure can sometimes prove a strong defense. On the other, saying or doing the wrong things during your arrest can lead to major complications in your case.
After your arrest, the police or a representative of the court will inform you of the charges against you. In Virginia, they have 72 hours to do so.
However, in most simple possession cases, you will receive your charges much quicker than that.
In general, there are two main rights you should remember when being questioned by an officer about a drug crime: your right to remain silent, and right to refuse to a search.
Your Right to Remain Silent
The most important thing to remember is that you have a right to remain silent. Under Virginia law, you must only identify yourself to the police, not provide any other information.
If the police arrested you while driving, you may also need to provide your driver’s license. However, you should not under any circumstances provide a false identity or license to the police.
Other than identifying yourself, it is in your best interests to avoid responding to questions from the police. That’s because you could accidentally incriminate yourself.
This is particularly important in regard to possession cases, where a misunderstanding with the police could result in distribution charges.
Your Right Against Unreasonable Searches
During your arrest, it is in your best interests to politely refuse to consent to any search of your vehicle or belongings. That’s because, under Virginia law, a police officer must have your consent, a search warrant, or probable cause to search your possessions.
“Probable Cause” here can refer to anything from detecting the smell of marijuana while pulling someone over, to seeing drug paraphernalia in plain view inside the car.
If your possessions were searched without your consent, a search warrant, or you believe the officer did not have probable cause, talk to a lawyer immediately. The same goes if you believe that any of your other rights were violated during your arrest.
After you’ve been formally charged, you should contact a lawyer immediately. Together, you can work to develop a legal strategy moving forward.
Among other things, this means seeking a probation program, or fighting the charges against you.
Virginia’s First Offender Probation Program
Individuals convicted of marijuana possession for the first time may ask to enroll in Virginia’s first offender probation program. If found eligible, the judge overseeing your case may defer disposition of the case, and will dismiss your possession charges after you successfully complete the program.
In return, you must obey several conditions:
- You must perform 50 hours of community service, as described above.
- You must go on probation for twelve months. During this time, you may not use drugs or alcohol. Additionally, crimes (not including minor traffic violations) will break your probation.
If you complete your probation successfully, the judge will dismiss your possession charges. However, keep in mind that individuals viewing your record will still be able to see your original charges.
Fighting Possession Charges
On the other hand, your lawyer may decide that you are better off preparing a legal defense. While fighting possession charges can be daunting, the following arguments have proven successful in Virginia courts:
- If you can prove that the police violated the law in arresting or charging you, the court is likely to drop your charges.
- If you can prove that the marijuana belonged to someone else, the court may find you not guilty.
- Finally, the state must prove that the substance found by police was actually marijuana. If the lab results come back negative for THC, it’s hard to argue that you were guilty of marijuana possession.
Fighting a marijuana possession charge can be a daunting process, and having the assistance of an attorney will help you in determining the best course of action for your case. Defenses like the ones above are common.
Alternatively, an experienced lawyer can argue for lower penalties, such as simple fines or mandated community service. You’ll want to discuss these options and others with your attorney in order to choose the best possible defense.
Going to court for marijuana possession is a scary prospect with serious consequences. However, with the help of a good criminal defense lawyer, you come to court prepared.
By doing so you can achieve the best possible outcome in your case, whether that’s probation or an acquittal.
While avoiding a possession or distribution charge in the first place is obviously preferable, there are different legal options to mitigate the penalties.
Alternatively, many first time offenders can instead apply for Virginia’s First Offender Program to have the charges dropped altogether.
You’ll want to talk over your options with a lawyer to make sure you have a solid plan of action before entering the courtroom.