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Possession of Marijuana

Possession of Marijuana Understanding Possession of Marijuana Charges

Despite recent changes to the law in many states, possession of marijuana is still a criminal act in the Commonwealth of Virginia. On a first offense, a person can be sentenced to up to 30 days in jail and $500 dollars. Va Code 18.2-250.1. On a second or further offense, a person can get up to one year in jail and a fine of $2500! Now in reality, most judges will not give you any jail time at all for getting caught with a small joint or bag of weed (at least not the first time), but they WILL take away your driver's license for six months. Va Code 18.2-259.1. You will also have a criminal record from then on that will follow you around for the rest of your life.

Restricted License

The law says that if you are convicted (found guilty) by a court of almost any type of drug possession (including marijuana), you will automatically lose your driver's license for six months – in fact they will physically take it from you right there in court. The law also says that if a person's license is very important to them, a judge can authorize a restricted license. To get a restricted license you will have to file an application, which usually means handing the filled-out form to the judge on the day of court. Once the application is filled out and approved by the judge, you will usually be able to pick up a temporary version of the license the same day. You will then take that piece of paper to the DMV within a few weeks to get a hard copy of the new license.

The restricted license can be used to drive to work, court, school, healthcare, church, or to take children to any of those things. Va Code 18.2-271.1. However, there are specific rules to follow and you may not drive for any reason other than what the judge approved of. If you drive outside those restrictions, you are breaking the law and if you are caught, you will be back in court facing another serious criminal charge. Va Code 46.2-301. Since judges don't have to give you a restricted license in the first place, they are usually pretty harsh with people who violate the rules. If you are caught driving to the grocery store one day, you'll probably lose the license entirely and may even spend a night or two in jail.

251 Disposition, Also Known as ‘The First Time Offenders Program'

If you are facing a marijuana charge for the first time, you may be eligible for a so-called “251 disposition,” so-called because the Virginia Assembly authorized the programs under Virginia Code section 18.2-251. These types of programs allow a case to be dismissed if the offender goes through probation and treatment. Under such a program, a person is required to perform community service, remain drug and alcohol free, and complete some drug education. In addition, the person will lose their driver's license for six months, although they are usually eligible for a restricted license. If these things are all done successfully, the charge is dismissed after one year.

While this is a great program, a good lawyer knows that it is only a fall-back if nothing else works. It is a huge pain for the person undergoing the program and even though there is no conviction, there will always be a record that the person was charged with possession.

Medical Marijuana

Even though some states have legalized possession of marijuana, this does not mean that you can legally buy marijuana in another state and bring it into Virginia. However, there might be an exception for a person who has a valid prescription from an out-of-state doctor. As of right now, Virginia law allows a person to legally obtain marijuana from a doctor. Va Code 18.2-250.1. However, at the same time, there is no law that allows doctors to prescribe or provide marijuana, so a person still cannot really have it legally for medical purposes in the Commonwealth. The law says nothing about whether you could obtain it legally from a doctor outside the state and then bring it into Virginia, so there might be an exception there. Courts disagree on what exactly that means, so it is important to have a lawyer that knows the local courts very well if this possible exception applies.

Constructive Possession

The concept of “constructive possession” is an important one in many marijuana cases. The basic idea is that a person can still be in “possession” of something even if that thing is not in their actual possession, like in their hand or pocket. But in this type of situation, a person can only be found guilty if they knew the marijuana was there and actually had control over it. Simply being close to marijuana is not enough, according to the Virginia Supreme Court. Lane v. Commonwealth, 223 Va. 713, 292 S.E.2d 358, 1982 Va. LEXIS 258 (Va. 1982); Hambury v. Commonwealth, 3 Va. App. 435, 350 S.E.2d 524, 1986 Va. App. LEXIS 379 (Va. Ct. App. 1986).

For example, imagine that a police officer pulls a person over for speeding and then smells something he thinks is marijuana. He orders the driver out of the car and searches inside, only to find a small bag of weed under one of the seats. The question is, did the driver know it was under the seat, and did he have control over it? Well, if the car is still full of smoke and the bag of weed was found under the driver's seat, a court will probably decide that the driver was in possession. However, if there was only a faint smell, the marijuana was found under the back seat, there were three other people in the vehicle, and the car was actually owned by the driver's brother, the court will probably decide that the driver did not necessarily know it was there, or at least that it was outside his control.

These cases always come down to the smallest little details, so make certain to get a lawyer who specializes in this sort of law if you think this defense might apply to your case.


Under Virginia law it is illegal to have possession of needles, pipes or other devices for the purpose of taking drugs, including marijuana. Va Code 54.1-3466. This is a criminal charge and the punishment can be up to a year in jail and $2500 fine. However, courts often only hand out small fines for this charge, especially on a first offense. In addition, since there is no license suspension at all, the inconvenience associated with a paraphernalia conviction is often much less than that of a marijuana possession. Even if you are charged with possession of marijuana, an experienced attorney may be able to convince a prosecutor to amend the charge to possession of paraphernalia and save you lots of hassle. For this reason, it is important to discuss with your lawyer not only the details of your case, but also your priorities regarding possible outcome.

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