Possession of Marijuana
Possession of Marijuana is illegal under Virginia law. VA Law § 18.2-250.1 penalizes possession of marijuana as a misdemeanor criminal offense. First offense possession of marijuana is punished by up to 30 days in jail, a $500 fine, 6 months loss of driver’s license, and a mandatory drug program. Second offense possession of marijuana in Virginia is a Class 1 misdemeanor punishable by up to 1 year in jail, a $2,500.00 fine, 6 months loss of driver’s license and a mandatory probation program with drug education and urine testing.
Under Virginia law, possession of marijuana must be either knowing or intentional, which means that the prosecuting attorney must prove that you either knew about or intended to have marijuana in your possession. The prosecuting attorney will have to show that you possessed marijuana intentionally, as opposed to accidentally or unknowingly. Unwitting or accidental possession of marijuana is a defense to explore with your lawyer.
Establishing the element of “possession” of the marijuana is very difficult for the government. In order to convict a person of illegal possession of an illicit drug, the Commonwealth must prove beyond a reasonable doubt that the accused was: 1) aware of the presence and 2) character of the drug, and 3) that the accused consciously possessed it. Your mere proximity to the drug is not sufficient to prove possession. In addition, ownership or occupancy of the premises where the drug is found does not create a presumption of possession. A judge or jury can still consider these circumstantial evidence factors in determining your guilt, but it is your defense attorney’s job to convince them otherwise.
Constructive possession (which simply means possession by circumstantial evidence) may be established when there are acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the accused was aware of both the presence and character of the substance and that it was subject to his dominion and control. A good defense lawyer would argue the opposite to the court.
Northern Virginia Enforcement:
Possession of marijuana is prosecuted differently in different Virginia jurisdictions. Fairfax County, for example, affords leniency to private-use possession cases for adults, but this leniency is in the discretion of the prosecuting attorney and must pass through the judge overseeing the case. Arlington County has a similar policy. The City of Alexandria does not have a leniency policy for non-prosecution of possession cases, but does have a diversion program that results in dismissal of marijuana possession charges after complying with conditions.
Possession with Intent to Distribute Marijuana (“PWID”)
Virginia criminalizes Possession with Intent to Distribute Marijuana under Virginia Law 18.2-248.1. The most commonly charged distribution crime is Fairfax County is “PWID” or Possession with Intent to Distribute Marijuana.
Possession with intent to distribute marijuana .5oz or less is a Class 1 misdemeanor – punishable by up to 12 months in jail and a $2,500.00 fine. Possession with intent to distribute marijuana more than .5oz, but less than 5lbs,, is a Class 5 felony – punishable by up to 10 years in prison. Possession with intent to distribute more than 5lbs of marijuana is a felony punishable by a prison sentence between 5 and 30 years in duration.
The difference between Possession with Intent to Distribute Marijuana, and the lesser offense, Possession of Marijuana, will depend on the court’s analysis of facts. Virginia courts must analyze probative evidence of intent to distribute a controlled substance. These factors include the quantity of the drugs seized, the manner in which they are packaged, and the presence of an unusual amount of cash, equipment related to drug distribution, or firearms.
Distribution of marijuana is defined as selling, sharing, trading, or gifting the drug. Virginia courts have considered a number of factors alone and in combination when determining if an intent to distribute marijuana exists:
1) packaging – cocaine packaged in two individually wrapped blocks in a single plastic bag supported a finding of distribution in a famous case
2) quantity – if the quantity of drugs possessed is greater than that ordinarily possessed for personal use, that fact alone may be sufficient to prove intent; however, where the quantity is small, the fact finder may infer the drugs were intended for personal use
3) presence or absence of drug paraphernalia for personal use – the absence of drug “paraphernalia suggestive of personal use” as evidence of an intent to distribute
4) expert testimony – expert testimony, such as from a police officer, is one factor to be considered by the fact finder in determining whether drugs were possessed with intent to distribute
5) a large amount of money – the presence of an unusual amount of money, suggesting profit from sales, is another circumstance that negates an inference of possession for personal use
6) paraphernalia consistent with distribution – the presence of paraphernalia such as scales, baggie corners, or razor blades used in the packaging process is inconsistent with possession for personal use
Northern Virginia Enforcement:
Possession with intent to distribute marijuana is prosecuted in Alexandria, Fairfax, and Arlington under standard Virginia laws and penalties without leniency exceptions that are afforded to simple possession cases.
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Penalty Table for Virginia Marijuana Charges
|Description of Offense||Code Section||Criminal Classification||Maximum Jail||Minimum Jail||Maximum Fine|
|Possession of Marijuana, 1st Offense||Va. Code 18.2-250.1||Class U Misdemeanor||30 Days||N/A||$500.00 Fine|
|Possession of Marijuana, 2nd Offense||Va. Code 18.2-250.1||Class 1 Misdemeanor||12 months||N/A||$2,500.00 Fine|
|Possession With Intent to Distribute < 1/2 oz||Va. Code 18.2-248.1||Class 1 Misdemeanor||12 months||N/A||$2,500.00 Fine|
|Possession With Intent to Distribute > 1/2 oz||Va. Code 18.2-248.1||Class 5 Felony||10 years||1 year||$2,500.00 Fine|
|Possession With Intent to Distribute > 5 lbs||Va. Code 18.2-248.1||Class U Felony||30 years||5 years||N/A|
|Possession With Intent to Distribute, 3rd Offense||Va. Code 18.2-248.1||Class U Felony||Life in prison||5 years||$500,000.00 Fine|
|Manufacturing Marijuana||Va. Code 18.2-248.1||Class U Felony||30 years||5 years||$10,000.00|
|Selling Marijuana to Minor||Va. Code 18.2-255||Class U Felony||50 years||10 years||$100,000.00|
|Transporting into Virginia with Intent to Distribute > 5lbs||Va. Code 18.2-255||Class U Felony||40 years||5 years||$1,000,000.00|
|Transporting into Virginia with Intent to Distribute > 5lbs, 2nd Offense||Va. Code 18.2-255||Class U Felony||40 years||10 years||$1,000,000.00|
First Offense Possession of Marijuana 251 Disposition
Virginia has something commonly referred to as a 251 Disposition. This is a probation program under Va Law 18.2-251 for first time Possession of Marijuana offenders, which leads to a dismissal of first time possession charges if a defendant admits guild and then complies with a 6 or 12 month probationary program. This program allows a judge to extend the case for probation and dismissal, during which time the accused will be ordered: (i) to successfully complete treatment or education program or services, (ii) to remain drug and alcohol free during the period of probation and submit to such tests during that period as may be necessary and appropriate to determine if the accused has not used any drugs or alcohol, (iii) to make reasonable efforts to secure and maintain employment, and (iv) to comply with 24-50 hours of community service. Such testing will be conducted by personnel of the supervising probation agency or personnel of any program or agency approved by the supervising probation agency (ASAP or Virginia state probation). The court will also require a payment all or part of the costs of the program, including the costs of the screening, assessment, testing, and treatment.
This outcome is not eligible for expungement and the criminal record will reflect a finding of facts sufficient for a finding of guilt.
A first offense disposition is not recommended for those who seek to keep their records clean. Professionals subject to background checks should contact an attorney to discuss potential trial, motions and plea agreement options for their case.
PRESCRIPTION OR MEDICAL MARIJUANA
A valid prescription for medicinal marijuana is a defense to the misdemeanor charge of Possession of Marijuana under Virginia law. It is not a defense to Possession with Intent to Distribute Marijuana.
Virginia recognizes prescription or medical marijuana under two circumstances: when the prescription was issued for treatment of cancer or glaucoma only. All other treatments or medicinal purposes are not excluded from prosecution. Va Code 18.2-251.1 states, in relevant part, “No person shall be prosecuted under § 18.2-250 or § 18.2-250.1 for the possession of marijuana or tetrahydrocannabinol when that possession occurs pursuant to a valid prescription issued by a medical doctor in the course of his professional practice for treatment of cancer or glaucoma.”