How to Fight a Marijuana Possession Charge in Virginia

After receiving a possession charge in Virginia, you can choose to either fight the charges, take a plea deal, or apply for the first offender program.

Virginia is one of several states where any use or possession of marijuana is illegal.

This means that anyone found in possession of marijuana can end up facing severe fines and even jail time.

However, that doesn’t mean that you can’t fight back in court.

In this article, we’ll go over your best legal options if the court charges you with possession of marijuana.

Understand Virginia’s Marijuana Laws

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Before you can fight your charges, you should find out the exactly what you’re being charged with.

In Virginia, marijuana possession can be either a Class U or Class 1 misdemeanor depending on the circumstances.

Always check with your lawyer to make sure that you know the maximum possible sentence for your charges.

Remember that receiving those penalties is always a possibility if you choose to go to trial.

Consider the First Offender Program

If it’s your first drug possession charge, you may be eligible for Virginia’s First Offender Diversion Program.

Also known as a “251 Program,” successful completion of this program will result in a full dismissal of your charges.

In return, however, you must comply with several conditions over the course of the program:

  • First, you must remain alcohol and drug-free for the length of the program. You will have to submit to regular testing to prove this.
  • You must complete a 10-week ASAP program, even if your offense did not involve alcohol. This normally costs $350, in addition to any court fees.
  • Finally, you must complete community service as assigned by the court. For most first offenders with marijuana possession charges, the requirement is 50 hours of community service.

If you complete the program successfully, your record will note that the charges against you were dismissed.

While going through the First Offender Program can be tedious, the consequences are much less severe than a conviction for marijuana possession.

This can make it a strong option if you are eligible.

Find Out if You Have a Defense

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If you are ineligible for the First Offender Program, you’ll have to search for a different defense.

Fighting a marijuana possession charge may be hard, but it’s certainly possible to do.

The main question is whether there were issues in the conduct of your arrest.

If so, you may be able to argue for pre-trial dismissal. Such arguments generally take one of two forms:

Probable Cause

The most common issue with an arrest for possession is illegal search and seizure.

Put simply, the police need probable cause or a warrant to search your person or vehicle.

This means they need to see or smell something suspicious, notice you driving irregularly, or the like.

If you can show that the police searched you without probable cause, your case may be dismissed.

Constructive Possession

A somewhat less common defense relates to constructive possession.

To prove possession, all the state has to show is that you knew the marijuana was there and “exercised control” over it.

“Exercising control” is essentially a legal term that means you effectively had the marijuana in your possession, even if you weren’t physically touching it.

Common examples would be if an officer found marijuana in the glovebox of your car, or if you’re in a car with someone who was possessing it.

Compared to other forms of possession (such as if the police found marijuana in your pocket), constructive possession is a charge that you can argue against in court.

For example, if the police found marijuana among your housemate’s possessions but charged you with possession instead, you may be able to argue that you never actually exercised control over the substance (such as if it was kept in a locked box in their bedroom).

Consider A Plea Deal

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If the state’s prosecutor has a strong case against you, you may want to consider having your attorney negotiate a plea deal.

In some cases, going to trial isn’t a very good idea unless you have a solid defense.

In a similar manner, the prosecution also generally wants to avoid going to trial because it means they’ll have to devote time and resources that could be spent elsewhere.

For these reasons, it’s very common for individuals charged with possession to have their lawyers negotiate a plea deal in order to avoid certain penalties.

In a typical plea deal, you must plead guilty (or “no contest”) to one or more charges, and in exchange, the prosecutor will drop the rest of your charges, and/or recommend that you receive a lesser sentence.

Remember that, if it’s your first offense, you should consider entering into the First Offender Program.

Although both involve fines, completing the program will result in your charges being dismissed, while a guilty plea will stay on your record forever.

In either case, you’ll want to talk over your strategy carefully with a lawyer in order to choose the best option for your specific situation.


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It can be hard to know whether it’s worth it to fight a marijuana possession charge in Virginia.

This goes double if it’s your first offense, and you are eligible for the First Offender Program.

In all cases, the best way to proceed is to speak to an experienced criminal defense attorney.

By getting in touch with a good lawyer early you can take the time to go through your options.

This will allow you to choose the best option for your case before you enter a plea.

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