Possession of Marijuana: Virginia Code § 18.2-250.1

What constitutes possession of marijuana in Virginia?

According to Virginia Code § 18.2-250.1,

“It is unlawful for any person knowingly or intentionally to possess marijuana unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act (§ 54.1-3400 et seq.).”

What does the Commonwealth have to prove?

The Commonwealth has to prove two things: 1) That it actually is marijuana; and 2) that the Defendant knew the substance was there.

Often officers will conduct a field test to see if it is Marijuana. Officers can testify to the field test results and it is absolutely crucial that the test was done correctly and according to proper procedures. In order for a field test for admissible, the test used must be approved by the Department of Forensic Analysis AND defendant must be given written notice of his right to a full lab analysis before trial.

Next, the Commonwealth must prove that the defendant knew that the substance was there. Proximity and ownership of the car or place where drugs were found is not enough to prove the defendant was aware that the drugs were there. Va. Code. 18.2-250. See Tucker v. Commonwealth of Virginia, 18 Va. App. 141, 442 S.E.2d 419 (1994). A defendant can be convicted of possession of marijuana even if the marijuana is not directly on their person. This means that a defendant can be convicted of possession of marijuana even if they did not buy it.

If marijuana is found in the defendant’s proximity (i.e. their home or car), the Commonwealth must prove: (1) that the defendant was aware of the presence and nature of the substance; and (2) the defendant exercised dominion and control over it. See Hambury v. Commonwealth of Virginia, 3 Va. App. 435, 350 S.E.2d 524 (1986).

What are the penalties for possession of marijuana?

Simple possession of Marijuana is a misdemeanor and carries a punishment of jail up to 30 days and a fine up to $500. A second or any subsequent violation is a Class 1 Misdemeanor, which holds a punishment of jail up to 1 year and a fine up to $2,500.

A conviction under 18.2-250.1 also requires a driver’s license suspension for 6 months, however a defendant can request for a restricted driver’s license during that time to go to work, school, and other necessary places. If convicted, you will also be asked to attend substance abuse classes as part of your sentence.

Why hire an attorney?

There are several points of issue in a Marijuana Possession case. Was it a legal stop of your car? If the traffic stop was legal, was it legal to do the search of your car? Was it legal to do a search of your person? Did you have medical reasons for using the marijuana? These are just some of the many questions an attorney examines when looking at your case.

Many jurisdictions such as Alexandria have recently changed how they handle marijuana possession charges. It is important to talk to an attorney to have your case evaluated.

An experienced criminal defense attorney from our office can help you successfully navigate all of these complicated legal issues, especially a potential motion to suppress, to obtain a dismissal or a reduction in charge. Call now for a consultation.