Last updated on May 23rd, 2019
In November of 2018, Michigan voters approved recreational marijuana use, while voters in Missouri and Utah approved marijuana for medical use. As a result of these votes, Virginia is now one of only 17 states that still criminalizes marijuana for both medicinal and recreational use.
In this article, we’ll cover the distinct ways that the Virginia Code treats marijuana possession and distribution differently than it does other drugs.
We’ll specifically outline the relevant Code sections that criminalize marijuana possession and distribution, the punishments you can expect, and how you can go about fighting the charges.
Recent News: As of 1/18/2019, the two most recent bills to decriminalize marijuana in Virginia have failed in subcommittee (see House Bill 2371 and House Bill 2373). This means that marijuana possession will most likely remain illegal for the rest of 2019.
- Marijuana Possession Charges in Virginia: The Basics
- Possession of Marijuana with the Intent to Distribute
- Collateral Consequences of Marijuana Charges
- Arrest Procedures for Marijuana Possession
- How to Fight a Marijuana Possession Charge in Virginia
Marijuana Possession Charges in Virginia: The Basics
As noted above, the Virginia Code treats marijuana possession differently than it does for other controlled substances. Specifically, a first offense of marijuana possession is classified as a Class U misdemeanor, with its own special set of rules and punishments.
Before we continue with the Virginia-specific rules, it’s important to note that marijuana is still illegal at the federal level.
Since marijuana possession is still treated as a Class 1 misdemeanor in federal courts, armed forces members and government employees should be especially careful.
Possession of Other Controlled Substances
Virginia criminalizes the possession of certain controlled substances based on the type of drug, not necessarily the amount.
These offenses carry a maximum penalty of a $2,500 fine and a prison sentence of up to 10 years. If convicted, you can also expect certain other penalties, such as the loss of your driver’s license and several collateral consequences relating to a controlled substance conviction.
Further, possession of large amounts of any of these drugs can result in additional drug distribution charges.
How Marijuana Possession is Different
The Virginia Code makes marijuana the sole exception to the rules described above. In particular:
- The court won’t necessarily suspend your license for a first offense marijuana possession charge. Instead, the judge will likely assign you several hours of community service.
- Unlike normal possession charges, the penalties for marijuana possession become more serious for each subsequent conviction. For example, while the first offense of marijuana possession is a Class U misdemeanor, a second offense counts as a Class 1 misdemeanor.
Essentially, the biggest difference between marijuana possession and the possession of other controlled substances is that the penalties are much less serious for a first offense.
The legalization of marijuana in many other states has led to an explosion in the production and use of different types of marijuana oils and resins. While legal in other states, the possession of these products is still illegal in Virginia.
Specifically, the Virginia Code treats the possession of hashish oil, resin, and other similar forms of marijuana which contain more than 12% THC by weight as Schedule 1 controlled substances. This is the same schedule class that contains drugs such as heroin.
For this reason, possession of hashish is charged as a Class 5 felony in Virginia. This means you could face a fine of up to $2,500 and a prison sentence ranging from a few months to 10 years, depending on the judge’s discretion.
As with all drug crimes, you will also face certain other penalties such as license suspension and the loss of certain rights.
Penalties for Marijuana Possession in Virginia
As stated previously, the penalties for marijuana possession are generally not as severe as for other drugs. However, a conviction for a marijuana offense can still lead to hefty fines, jail time, and other serious consequences.
As a quick reference, here are the general penalties for marijuana possession charges in Virginia:
- 1st Possession Offense: Class U Misdemeanor – If convicted, you’ll have to spend up to 30 days in jail and pay a fine of up to $500.
- 2nd or Subsequent Possession Offense: Class 1 Misdemeanor – For every conviction after your first, you’ll face up to 12 months in jail and a fine of up to $2,500.
- Possession of Hashish Oil: Class 5 Felony – If you’re arrested with hashish or a similar product, you’ll face a punishment of between 12 months and 10 years in prison, plus a fine of up to $2,500.
In addition to the penalties detailed above, you could also face a number of additional penalties associated with these offenses.
For example, in some cases you might lose your driving privileges for 6 months. In others, you’ll have to deal with several collateral consequences of your conviction, which we’ll detail in a section below.
Cannabidiol and THC-A Oil
However, there is one exception to the possession penalties detailed above. Specifically, Virginia has recently made a very limited exception for certain marijuana derivatives such as cannabidiol and THC-A oil.
To read more about this change, check out the following resources:
- The Virginia Department of Health Professions – A website for pharmaceutical professionals to learn more about the change.
- The Virginia NORML Website – A nonprofit organization which seeks to legalize marijuana use in Virginia. They have a well-written FAQ section on the topic.
- Virginia Code § 54.1-3442.6 – The relevant Virginia Code section for this topic.
Essentially, to legally possess cannabidiol or THC-A oil in Virginia you must have both a legal prescription from your doctor and a diagnosed condition or disease which requires treatment using these substances.
If you’re arrested for the lawful possession of Cannabidiol or THC-A oil, get in touch with a lawyer. In most cases, you should be able to file a certification with the court and have the court drop the charges without the case going to trial.
Virginia’s “Good Samaritan” Law
As one final note regarding the possession of marijuana in Virginia, you should be aware of the state’s “Good Samaritan Law.”
Essentially, this law gives immunity to individuals who call for emergency services in the event of an overdose or other similar medical emergency involving the use of drugs.
Certain synthetic marijuana products may have unintended side effects, while in other cases the marijuana itself may be laced with another drug or chemical.
If you are with someone who is having a bad reaction to a marijuana product, you should call for emergency services immediately.
Possession of Marijuana with the Intent to D
As with most controlled substances, the amount of marijuana in your possession doesn’t matter when it comes to a drug possession charge.
However, large quantities of marijuana, combined with the presence of other factors such as scales, baggies, and large amounts of cash, can lead to additional drug distribution charges.
In most cases, possessing large amounts of Schedule I or II drugs is a felony with incredibly harsh penalties. However, in Virginia, the penalties for marijuana distribution are slightly different than for other drugs.
For instance, the possession of large quantities of marijuana by itself does not constitute proof of distribution. Instead, the state must rely on circumstantial evidence such as the examples noted above.
Further, the penalties for marijuana distribution scale based on the amount of marijuana found in your possession:
- The possession of up to a half-ounce of marijuana with the intent to distribute is a Class 1 misdemeanor, punishable by a fine of up to $2,500 and up to a year in jail.
- Possessing between a half-ounce and 5 pounds of marijuana with the intent to distribute is a Class 5 felony. This is punishable with a fine of up to $2,500 and a sentence of between 1 and 10 years in jail.
- The possession of more than 5 pounds of marijuana with the intent to distribute is also a felony. However, it is instead punished with a prison sentence of between 5 and 30 years.
Other Facts about Marijuana Distribution Charges in Virginia
In addition to the above information, it’s also a felony to cultivate (grow or produce) marijuana or marijuana derivatives with the intent to distribute.
If you’re charged with growing or manufacturing marijuana, you will face a prison sentence of between 5 and 30 years as well as a fine of up to $10,000.
Similarly, the possession of marijuana paraphernalia (pipes, bowls, bongs, grinders, etc.) is also a Class 1 misdemeanor. Generally, you’ll receive a drug paraphernalia charge if you sell or otherwise distribute these products.
Further, selling or distributing drug paraphernalia to a minor is a felony. If you’re charged with distributing drug paraphernalia to a minor, you could serve up to a year in prison and have to pay a fine of up to $2,500.
Finally, Virginia has a “three strikes” rule when it comes to marijuana production and distribution. If you receive a third conviction for marijuana production or distribution, the maximum penalty instead becomes life in prison.
Collateral Consequences of Marijuana Charges
In addition to the direct penalties outlined in your sentencing (such as jail time, fines, and license suspension) there are several other consequences you need to take into account.
In Virginia, drug possession charges can have several additional, collateral consequences with wide-ranging effects. These consequences can range from ineligibility for professional licenses to restrictions on receiving state benefits.
Further, if you were convicted of a felony drug offense you’ll lose certain rights such as the right to vote, hold office, and own a firearm.
Below, we’ll list some of the most common collateral consequences that affect individuals convicted of drug offenses in Virginia.
Under Virginia law, employers can request
Having a marijuana charge on your record could cause an employer to pass you over for a potential job. Further, certain drug offenses can bar you from entering some professions in the first place.
For example, most controlled substance offenses bar you from gaining employment as a school bus driver or elderly care provider.
Loss of Housing Opportunities
A particularly nasty effect of a controlled substance conviction is the loss of certain private and public housing opportunities.
Virginia landlords are allowed to perform background checks on potential renters, provided they don’t target specific racial or religious groups. If you have a marijuana charge on your criminal record, a landlord may choose to deny your rental application.
Similarly, a marijuana conviction could bar you from certain public housing benefits. You can even be kicked out of your current apartment if you receive a felony marijuana conviction.
Finally, you should also note that the “One Strike, You’re Out” rule established back in the 1980s still applies to Virginia housing. Under this rule, a landlord can evict an entire household if even one member is convicted of a felony. This rule applies regardless of whether anyone knew of their illegal activity.
Marijuana Charges and Immigration/Naturalization Proceedings
As a firm that processes many immigration cases, we’re especially aware of the effect that certain drug convictions can have on the lives of immigrants. The c
According to the United States Citizenship and Immigration Services (USCIS) office, an essential requirement to naturalization is that the person is of “good moral character.”
If you have a criminal offense such as marijuana possession on your record, you may not meet that standard.
However, having a marijuana charge doesn’t necessarily bar you from citizenship. For instance, if it’s a single offense for simple possession of 30 grams or less of marijuana, you can still qualify.
If your offense is more serious, or if you have multiple charges, you can still submit evidence that you have paid the penalty for your crime and have rehabilitated.
In any case, the laws surrounding whether simple possession counts as a Crime Involving Moral Turpitude are a little murky. Any non-citizen who receives a marijuana charge should contact an attorney immediately to see whether the charge will affect their status.
This is true even if you currently have legal status (i.e. “have a green card”) or are not otherwise seeking an adjustment of legal status.
Arrest Procedures for Marijuana Possession
No matter what the charge, the police are obligated to follow certain procedures when they make an arrest. Before we get into the ways you can fight a marijuana possession charge in Virginia, it’s important that you understand the procedures surrounding your arrest.
Search and Seizure
If the police stop you as part of an investigatory or Terry stop, they can conduct a very limited search of your person. The officer can only do a pat down of your clothing if they believe that you may have a weapon. That means they may only pat you down or use a metal detector.
If the officer finds marijuana during this limited search, it may not be admissible in court.
To do more than a pat-down, or to search your vehicle or home, the officer must have any one of the following: “probable cause,” a search warrant, or your consent.
“Probable cause” refers to sufficient evidence that a crime has been committed. This might be the corroborated testimony of another witness, the officer’s sight or smell of the marijuana, or the reaction of a drug-sniffing dog.
If the police show up at your house or want to search your car, they need a search warrant signed by a judge or magistrate to legally do so. If they cannot produce such a warrant, you should calmly but firmly deny them entry into your property.
Finally, you should never give your consent to a police search, regardless of the circumstances. There is literally no benefit to doing so, and anything the police find can be used against you in court.
This is true even if you were unaware of the evidence (such as if a friend dropped it in your car).
In Virginia, police are required to read or dictate the following “Miranda warning” before they question you about a possible crime in which you are considered to be a suspect:
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights?”
If English isn’t your first language, you also have the right to ask for an interpreter before you answer any questions.
The Miranda warning is there so that you don’t accidentally incriminate yourself before speaking with an attorney. For this reason, the police will normally tell you your Miranda rights when both of the following are true:
- You are in “custody” as a suspect of a crime.
- You are being “interrogated” by a law enforcement officer.
If the police fail to read you your Miranda rights, or begin to interrogate you before telling you your rights, you should make sure your attorney knows about this discrepancy. Doing so could lead to a suppression of certain evidence that arose from the violation of your rights.
In Virginia, there may be a period of time between when you are arrested and when you receive the formal charges against you.
Always let your attorney know what jail you are in, and how long you have been there. If you’ve been held for more than 72 hours, the police department may be in violation of your right to be brought in front of a court of law within the statutory requirement.
Constructive vs. Actual Possession in Virginia
Whether you are charged with actual possession (the police find drugs on you) or constructive possession (the police find drugs near you), it’s important that you take notice if the officers aren’t following the correct arrest procedures.
For example, if you are a passenger in a car, and as a result of a lawful search, drugs are found inside the armrest, you might be charged with possession if the officer is unable to ascertain who the drugs belong to during the search.
If the arrest procedure was botched or incorrect in any way, you should bring up these irregularities with your lawyer. Incorrect procedure by the arresting officer can provide a defense in court.
Further, cases based on constructive possession are much harder for the Commonwealth to prove.
As long as you didn’t accidentally make any statements about the substance (i.e. “I knew it was there but it’s not mine”) there is a good chance an experienced lawyer can argue for reduced or even suspended charges.
How to Fight a Marijuana Possession C
harge in Virginia
How you choose to fight your marijuana charge will depend on three things:
- The seriousness of the charge (possession vs. distribution).
- The strength of the Commonwealth’s case against you.
- Whether or not it’s your first offense.
These three factors will greatly affect the paths available to you for fighting a marijuana charge.
Generally, however, you’ll have three options available to you:
- Apply for Virginia’s First Offender Program or a similar drug court program.
- Argue for dismissal of the charges based on a procedural issue listed above or another, similar reason.
- Take a plea deal for a lower sentence in exchange for a guilty plea.
We’ll outline each of these strategies below.
Virginia’s First Offender Program
While any drug possession charge can result in serious consequences, the Virginia Code allows for the focus of the first marijuana offense to be on rehabilitation rather than punishment.
In this way, the large majority of individuals charged with a first offense of marijuana possession are eligible for Virginia’s First Offender Program. This program basically trades probation and education for a dismissal of the charges.
Specifically, the court:
“…Without entering a judgement of guilt, and with the consent of the accused, may defer further proceedings and place him on probation upon terms and conditions.”Virginia Code § 18.2-251
In most cases, the best strategy for fighting a first-offense marijuana possession charge is to apply for this program. While you’ll have to take classes and do community service for around 6 months, it’s still a relatively light sentence for the charges.
Further, if you complete the program the possession charge will show up as dismissed on your criminal record.
To take advantage of this program, you must complete a few requirements within six months of your trial:
- Plead guilty/no contest to the offense in court.
- Remain drug-free and avoid any further criminal offenses.
- Attend court-approved rehabilitation and education programs.
- Make a reasonable effort to secure and maintain employment.
- Complete any community service hours the court deems necessary (usually 100 hours for a felony offense or 24 hours for a misdemeanor).
When you enter the program, the judge will normally suspend your license until you complete all of the requirements listed above.
Alternatively, if the drugs were not found when you were operating a vehicle, they may assign you an additional 50 hours of community service if they choose to not revoke your license.
After successfully completing the program, you can return to the court and have the charges dismissed and your driving priviledges reinstated.
However, the arrest itself cannot be expunged and will show up on background checks.
Further, you may only enter the program for a first offense. If you fail to complete the program, or if you’re charged with a second offense, you cannot enter it again.
Arguing for Dismissal
As noted above, another option is to argue for dismissal due to procedural issues during your arrest or detainment. While this strategy is very case-specific, it’s still something to talk over with your lawyer, especially if you’re ineligible for the First Offender Program.
For example, you might be able to have the charges dismissed in the following scenarios:
- If you can prove that the police illegally searched you, or did not have neither reasonable suspicion nor probable cause when detaining you.
- If you can successfully argue against the Commonwealth’s constructive possession case (for example, if marijuana was found in your friend’s trunk while you were in the passenger seat).
While not the preferable option, many marijuana cases end with the individual taking a plea deal.
In most cases, a plea deal is a good idea when the Commonwealth has enough evidence to successfully convict you. Instead of drawing the matter out, you and your lawyer can negotiate with the Commonwealth’s Attorney for a lower sentence in exchange for a guilty plea.
There are many advantages and disadvantages to taking a plea deal. You’ll wan to discuss your options with an attorney before your trial, but in general there are a few things you need to consider:
- Pros –
- You can reduce the charges or negotiate a lighter sentence.
- You’ll know your punishment immediately, instead of being surprised by a judge’s decision.
- Plea deals save time and money since they’re resolved before your trial.
- Cons –
- You’re effectively giving up on getting the case dismissed, and will have to take the punishments in the plea deal.
- The deal in front of you might not be the best deal available. You should try to wait for a time closer to your trial before signing a deal. The Commonwealth’s attorney may offer you a better one later on.
- Pleading guilty can lead to collateral consequences. You’ll have to live with a drug possession charge on your record, and deal with the collateral consequences we listed above.
For this reason, the only way to know if you should try for a plea deal is to talk over your options with your lawyer.
Marijuana laws in the United States seem to change every year. Virginia is one of the few states that still criminalizes the possession of both medicinal and recreational marijuana.
Virginia’s laws tend to treat the possession and distribution of marijuana as lesser charges compared to other drugs. But that doesn’t mean that marijuana-related charges aren’t a big deal.
A conviction for even simple possession of marijuana is a criminal charge. It can result in substantial fines and a permanent criminal record.
Your best bet for avoiding the worst of these penalties is to get in touch with an experienced criminal defense lawyer as soon as possible after receiving a controlled substance charge for marijuana possession.