Hello, my name is Willie Mejia, and I am a Virginia attorney. Today, I’d like to take a few moments to discuss one of the most common charges police officers cite people for: drug possession. In this first part, I will focus on possession of marijuana;
In subsequent parts, I’ll focus on controlled substances other than marijuana,
As well as the future of drug legalization in Virginia,
And the rights you have during stops and searches by police.
Cannabis uses and compounds.
Cannabis, also known as marijuana, among other names, is a psychoactive drug from the Cannabis plant,
And is used for medical or recreational purposes.
The primary psychoactive component of cannabis is tetrahydrocannabinol (THC), one of many compounds found in the plant.
It can be used by smoking, vaporizing, within food, or as an extract.
Effects of cannabis use.
Marijuana use has both mental and physical effects.
It causes a high, or stoned, feeling and other effects including:
-general change in perception,
-impaired short-term memory,
-altered sense of time,
-impaired body movement,
-and an increase in appetite.
At high doses, mental effects include:
-and ideas of reference, sometimes with anxiety and panic.
Its physical effects include:
-increased heart rate,
-and behavioral problems in children whose mothers used cannabis during pregnancy.
Marijuana use is still criminalized in Virginia.
Because of these effects, it has long been the policy of the United States to criminalize
Virginia has been no exception; marijuana use is still criminalized in this state.
However, in recent years, with the rise of cannabis use for medicinal purposes,
As well as the recognized phenomenon of mass incarceration brought about by the failed “War on Drugs,”
Many states have actually legalized, at least in part, some recreational or medical use of marijuana.
Eleven states, and Washington, DC, have legalized marijuana for recreational use for adults over 21.
And, 33 states have legalized medical marijuana.
Importantly for our purposes, Washington D.C. and Maryland, our neighboring jurisdictions, have legalized it in some form.
However, just because it is legal there does not make it legal in Virginia yet!
Thus, many of the clients I represent are often charged with possession of marijuana, that they purchased legally,
But then brought or used in Virginia, where it’s still criminalized.
How does the possession of marijuana operates in Virginia?
So long as this is the case, Maryland & DC residents who use marijuana,
Or Virginia residents who do so discreetly, should understand how this charge operates in Virginia,
Because use of this substance can still result in a conviction.
In Virginia, possession of marijuana is made illegal under § 18.2-250.1, which reads
“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.”
I’ve bolded certain sections of the law, that we might focus on its most important elements.
Firstly, this law forbids possession of marijuana.
While that seems obvious, in Virginia defendants have a right to have any material seized by police as a “controlled substance” be tested by the Department of Forensic Sciences.
That’s under Virginia Code § 19.2-188.1.
If the material they seized turns out not be marijuana, then you haven’t committed a rime.
Always insist that the material seized be tested;
Don’t give Virginia a pass simply because you might “know” that what they seized is marijuana.
Secondly, this law forbids singular possession of marijuana.
In other words, you as an individual are not allowed to have it on you, or otherwise near you in a place you have access to.
Note that a different law, § 18.2-248.1, penalizes selling, giving, distributing or possessing marijuana with the intent to sell, give or distribute it to someone else.
Thirdly, the law only forbids the knowing or intentional possession of marijuana.
The idea is that the law doesn’t punish those who don’t know they have it on them,
Or in something they have (like a purse or bag).
It’s not uncommon to have people charged with this offense because they were holding something for someone else,
And it had marijuana inside.
At the same time, this gives police officers a very big incentive to get you to admit that you knew about,
Or bought or otherwise obtained the marijuana at issue.
The most common evidence of knowledge is your own words.
Telling an officer that you have marijuana, or even worse, showing it to them, directly incriminates you.
Thus, whether you knew about it or not, the safest play is to always stay silent about whatever an officer finds.
Silence cannot show knowing or intentional possession.
This is especially important because,
Under this law, prosecutors and police officers are not allowed to presume that because you own the house or vehicle where the marijuana was found, you had knowledge of the marijuana.
They need something more,
Almost always your own words– don’t give it to them!
Exception for medical marijuana usage.
Finally, the law does have an exception for medical marijuana usage pursuant to a valid prescription.
Most states that allow medical marijuana use issue cards or other paperwork for patients to carry for verification.
This would be one of the few times talking with an officer would be beneficial– showing proof of your prescription,
Even if it’s from out-of-state, to a police officer or a judge
Should be sufficient evidence of this exception for a charged like this to be dropped.
Consequences of the conviction for marijuana possession in Virginia.
In short then, you can only be guilty of this offense
if you (1) knowingly (2) possess (3) marijuana (4) without a valid prescription.
Note that purchasing it legally from another jurisdiction, like Maryland or DC, is not covered by this law,
Which is why it remains illegal in Virginia.
Thus, if you’re a Virginia resident, and you travel to Maryland or DC to purchase marijuana,
It’s best to consume it there, and then return home.
Likewise, if you live in Maryland or DC, do not travel into Virginia carrying marijuana on you or in your vehicle;
Being caught with it is not the worth the consequences of a criminal conviction.
In Virginia, if you are found guilty of this offense, a first time conviction is an unclassified misdemeanor
Punishable by 30 days in jail, and $500 maximum fine.
Additionally, if you were driving a vehicle, the law also requires a six month driver’s license suspension.
A second conviction is a Class 1 misdemeanor, punishable by up to one year in jail, and a $2500 maximum fine,
Along with the same license suspension if you were operating a vehicle during the time of the offense.
How to avoid license suspension for marijuana possession.
For many people, the license suspension is the severest consequence of a conviction.
If avoiding the license suspension is your goal,
Talk to an attorney to determine if changing the charge to “possessing marijuana paraphernalia” (scales, baggies, etc.) is a possibility.
Under this charge, Virginia Code § 18.2-265.3, the offense is identical in terms of consequences to the ordinary marijuana possession statute,
But does not mandate the license suspension.
For first-time offenders only, Virginia also does have an alternative way of resolving this charge,
The “251 program,” so named after its placement in the Virginia Code, § 18.2-251.
If you have not been convicted of a prior possession offense,
This section allows the Court to place you on supervised probation for a period of six months–
If, during that time, you stay clean, complete 24 hours of community service (or more if it’s a felony possession charge), and successfully complete a drug treatment or education program,
The charge will be dismissed, without an adjudication of guilt.
This means that a dismissal under this section is not a formal conviction,
And thus, if you are ever asked “Have you ever been found guilty of a drug offense,” you can lawfully answer no.
However, the catch is that, if you get a charged dismissed under this section, you cannot later get it erased from your record (i.e., expunged).
Until such time as the law in Virginia changes, it’s important that you understand how Virginia classifies marijuana possession.
The feeling of getting high is never worth a permanent conviction on your record.
In subsequent posts, I’ll discuss more serious drug possession offenses,
As well as your rights during a search and seizure, and the future of drug legalization in Virginia.