Possession of Marijuana Law and Procedure for Fairfax County, Virginia
The prosecution of simple cases of possession of marijuana in Fairfax County is different than the prosecution of these cases in other Virginia jurisdictions.
The newly elected Fairfax County prosecutor declared on January 2, 2020, that his team is expected to non-prosecute charges of marijuana possession in General District Court for Fairfax County. The determination of which cases will be afforded such leniency will depend on a case-by-case analysis of possession of marijuana cases where an adult is charged for personal use in a private place. This leniency will not extend to possession with intent to distribute marijuana, it will not extend to juvenile cases, and it will not extend to smoking marijuana in public places.
Under Virginia law, marijuana possession remains unlawful. On average, Fairfax County police charge over 2,600 marijuana possession cases each year.
Moreover, according to the police department, the new Fairfax County soft prosecution policy will not change how Fairfax Police officers enforce Virginia’s marijuana possession laws. Thus, people within Fairfax County will still be charged for Possession of Marijuana by Fairfax County Police, will be summoned to court, and will still need to go to court. There, county attorneys will determine whether you will be prosecuted or not.
Dismissal or non-prosecution of criminal charges in court is not guaranteed, even if the prosecutor asks for it. Fairfax County judges have voiced their concerns with this policy and may stand in the way of non-prosecution and dismissal.
Fairfax County is not the first jurisdiction to attempt to alleviate the marijuana possession burden on defendants. Greg Underwood, a prosecutor in a Virginia city about 200 miles southeast of Fairfax, attempted to dismiss all of the marijuana charges pending before the Circuit Court. Norfolk judges did not consistently honor his motions for dismissal, so Underwood took his case to the Supreme Court of Virginia. In the case facts presented to the Supreme Court, Underwood told a Circuit Court judge that he was “entitled” to dismiss a marijuana charge. The Supreme Court disagreed, saying that Virginia judges have “no duty” to dismiss a case just because a prosecutor asks for a dismissal. Virginia judges, thus, continue to maintain discretion over marijuana cases. Another Virginia, prosecutor was similarly engaging in dismissal of marijuana cases throughout 2019, though she has recently run into some opposition from the local judges.
FAIRFAX COUNTY COMMONWEALTH’S ATTORNEY WILL END WASTEFUL, OUTMODED POLICY REGARDING SIMPLE POSSESSION OF MARIJUANA
FAIRFAX COUNTY, VA — Commonwealth’s Attorney Steve Descano announced that he has directed his office to no longer prosecute adults for the simple possession of marijuana, effective immediately.
“As Fairfax County’s Commonwealth’s Attorney, I’m committed to a safe and just Fairfax County. That means dedicating the resources of our criminal justice system to diligently providing fair and equal treatment under the law to all of our citizenry while prioritizing the safety of our entire community. Fulfilling that mission requires proactively identifying matters that make Fairfax less safe and considering the downstream effects of every action this Office takes. That’s why, after careful and deliberate consideration, I’ve directed my office to no longer prosecute adults for the simple possession of marijuana, effective immediately,” Descano said.
“Simple possession” of marijuana refers to possession of marijuana for personal use. It does not include possession with the intent to distribute, nor does it include conspicuous public use of marijuana.
Prosecutors will make a case-by-case determination regarding whether the facts of a case qualify as “simple possession.” Prosecutors will look at the totality of the circumstances in making this determination. The prosecutor will take into consideration all the relevant factors of a case including, but not limited to, the amount of marijuana present, the packaging and division of marijuana, and any accompanying drug or drug- sale paraphernalia.
Descano continued, “I did not come to this decision lightly. This deliberate policy shift is a result of significant meetings, research, and thoughtful considerations. It’s based on a thorough look at our criminal justice system, downstream consequences, and most importantly our community.”
“I dedicated myself to the pursuit of justice as a lawyer which means I dedicated myself to this very type of reform. When I raised my hand and took the oath of office I also dedicated myself to serve our community by providing justice for all to the best of my ability. Therefore, consistent with a prosecutor’s duty to seek justice and my dedication to our community, I have directed my office to dismiss prosecutions of adults for simplepossession of marijuana.”