Our Fairfax criminal lawyer and Northern Virginia-serving defense attorney believes there is not enough transparency when it comes to the first offender program in Virginia. This article discusses what the program is, why it is flawed, and how it can be improved. The Vincenzes Law firm’s main office is in Fairfax, VA, and while Fairfax County is the most populous jurisdiction in the Commonwealth, our criminal defense law firm serves most counties and cities in Northern Virginia. For marijuana laws in Virginia, visit our comprehensive marijuana in Virginia legal page.
First-time Possession of Marijuana Charge in Virginia?
Be careful. Hire a Virginia defense attorney. Go from there. I wish people would listen to this advice, but sadly, people line up like lemmings, think they are making a great decision, and proceed to walk right off a cliff every day. I see it every day, I would know. I am Brenton Vincenzes, founder of Vincenzes Law, and leader of the legal team that serves people in Northern Virginia accused of felonies, misdemeanors, and traffic infractions.
Many people are under the false assumption that it is a great idea to participate in something known as the first-offenders program in Virginia.
First, it is necessary to explain what this program is.
Then, it is important for readers to learn why I would not ever suggest this program to 99% of my clients.
Finally, I offer a few ideas to fix this problem.
The First Offenders Program: Explained by a Virginia Marijuana Criminal Defense Attorney
When you are in court day in and day out like I am, you see a lot of things. When it comes to the first-offender program, what I like to call “marijuana court” (the docket where the marijuana cases are assigned to), it is not uncommon for a judge to give a spiel that goes something like this:
If you are here because you have been charged with possession of marijuana, and if it is your first time being charged with this crime, you are eligible for the first offender program. This program is a way to have your case dismissed. If you participate, it will require a drug evaluation, participation in drug classes for several months, and you must not get in trouble for a very long time. If you comply, you can come back to court and your charge will be dismissed.
When I hear this spiel, I often see parents looking to their defendant-children with wide eyes and a half-smile, nodding and giving a general look as if to say, “wow you would be foolish to pass this up.” And invariably, the large majority of these young adults do take the bait…they choose to participate in the program instead of having a trial, and instead of having a chance to plead not guilty. The common thread is that the large majority of these young adults are unrepresented by counsel, and do not realize they may be making a huge mistake. The alluring phrase, “case dismissed,” sounds good. But if these parents (or the defendants) knew what the long-term consequences entailed, they would not be so enthralled.
Shooting Themselves in the Foot
The bottom line: the first-time offender program in Virginia is misleading. It is misleading because those first time marijuana possession defendants who choose to participate in the program think they are going to have their case dismissed, at which point, the charge will be in the past. Right? No.
These people think they will be able to move on, and not have to worry about it anymore. Not the case.
Sadly, the first-time offender program only dismisses the case at the expense of the individual’s permanent criminal record. In sum, one of the most important reasons why I tell clients that they should strongly consider not participating in the first-offender program is as follows:
although it can lead to a dismissed charge, yes, it comes with a high price…they do not tell people this in court, but the price is that it virtually operates to forfeit that person’s chance at erasing (expunging) the record from public view.
Do you think a recent 22 year old college graduate who just entered the job market for the first time will have much luck looking for a good job with a drug offense on their permanent record? I don’t think so.
Important: Looking for a Marijuana Defense Attorney
I get it. Searching, asking, finding. It is not easy to find a defense attorney who suits your needs and meets your budget. Or is it? Here is a recent post you may find helpful, if you think you cannot afford a lawyer.
If you are facing a pending charge related to marijuana, be it possession, distribution, manufacturing (growing), or a charge involving paraphernalia or synthetic Cannabis, you may wish to visit our Fairfax criminal lawyer’s main Virginia Marijuana Laws page. It is important to hire an attorney for all drug offenses, even misdemeanors, because of the implications of the permanent record (and the stigma that still exists).
Marijuana in Virginia is a Problem
As a Virginia Criminal Defense Attorney, I defend people charged with possession of marijuana often. What I am about to tell you may be shocking (it sure shocked me):
Nearly a quarter of my clients within the past three months were either charged with possession or distribution of marijuana, or the criminal charges resulted from a search predicated upon an alleged marijuana smell.
In Virginia, we have a marijuana problem. The problem is not marijuana in Virginia. The problem is simple: the Virginia marijuana laws. Our policies are outdated and harmful. It is my belief that the marijuana laws in Virginia are:
- ruining lives;
- hampering struggling young adults;
- overcrowding jails and penitentiaries;
- costing all tax-paying citizens money; and,
- causing our communities to become more dangerous.
A recent study of Fairfax County arrests in a given (roughly) two month period revealed how frequently marijuana possession is the basis for an arrest. The Vincenzes Law legal and research team published an infographic to illustrate how marijuana charges in Virginia compare to the frequency of other types of arrests. This article, however, is not about the frequency of marijuana arrests. It is about…
Possession of Marijuana: the Fallacy of the First Offender Program
This article is important, and I wrote it because I feel as if there is a gross inadequacy of information available when it comes to the consequences of something called the “first offender” program in Virginia. To be fair, many great programs exist. The first-offender program is not one.
Maybe you are here because:
- you are doing research on the war on drugs, prohibition, and perhaps it is something you care about;
- you or a loved one is facing a pending criminal charge; or,
- your day in court has come and gone, and now you want to do something about a blemish on your record.
We can learn a lot by studying the phrases people use the most when trying to learn more about this topic. Here are a few of the
top marijuana search phrases in Virginia:
possession of marijuana Virginia
Should marijuana be legalized
is marijuana legal in Virginia
Possession of marijuana
Marijuana in Virginia
This tells me two things:
- first, people are using search terms like, “possession of marijuana Virginia,” “possession of marijuana,” and, “marijuana laws” because they want to know what penalties they face (probably because they or a loved one has recently been charged); and,
- second, people are using another set of terms, such as, “should marijuana be legalized,” “is marijuana legal in Virginia,” and “marijuana in Virginia,” because more people than ever now believe marijuana prohibition needs to end. (Gallup poll).
I have an insider’s perspective into the justice system, and as a Fairfax criminal lawyer and Virginia defense attorney I can tell you how the most populated (and perhaps most influential jurisdiction in Virginia) implements failed marijuana policies.
The first-offender program, when described by a judge at the outset of a court docket, seems great… But a critical piece of the puzzle is usually left out.
If you or a loved one happened to pick up a charge for first-time marijuana possession, would you think it would be wise to participate in a program requiring community service, a drug evaluation, and a few classes in exchange for the charge being dismissed? Many people think so. Sure, and I do not blame you if this was your initial reaction.
Be careful. Some lawyers do not realize how bad of an idea it is, because they are not solely criminal defense attorneys. Some lawyers are general practice attorneys, and do not devote their entire practice to studying criminal defense. But those of us that do focus only on criminal law rarely advise a client to take the first-offender program option.
And here is why…
- a criminal arrest and conviction (both) become a record, and are permanent in Virginia (for adults).
- if a person is acquitted, found not guilty, or the charge is dropped (nolle prosequi), that person is eligible to expunge (erase) the record of the arrest from the public’s view.
- If a person is found guilty, or if the case is dismissed pursuant to the first-offender program, then expungement is not feasible. It is 99.9% not possible. The only way to expunge a marijuana possession record after one has participated in the first-offender program is to obtain a Governor’s absolute pardon.
First-time marijuana possession is punishable by
- up to 30 days in jail,
- a fine of several hundred dollars, and
- loss of driving privileges.
In reality, if a defendant who is found guilty of first-time marijuana possession in Virginia has a clean record, he or she will very seldom be sent to jail. A fine is fairly typical, and so is loss of driving privileges. Perhaps the worst consequence is that the offense cannot be expunged upon a finding of guilt. Can you guess what most educated defendant’s priorities are? If you guessed,
“to do whatever possible to obtain an expungement”
…you would be correct. To recap, a first marijuana possession conviction of someone with a fairly clean record will rarely will result in active jail time, but they may be ordered to pay a fine of a couple hundred dollars, and will be able to generally apply for a restricted driver’s license (allowing them to go to/from work, place of worship, a doctor’s office, and other places).
In exchange for saving a few hundred (or less) dollars, these first-time offender program participators mutilate their criminal records with a drug charge that will be visible to employers and future employers for the rest of their lives. It is my strong belief both through experience and observation, the most important thing to the vast majority of marijuana possession defendants is for the charge to not remain on their criminal record. That said, remember this: both a guilty verdict and participation in the first offender program will not achieve this goal.
So what does one gain from participating in the program? Think of it this way: By participating, a person is trading away their right to a trial. The person is saving a few hundred dollars (assuming they are found guilty), in order to take (and pay about the same amount, many times) for drug classes.
How I would fix the first time marijuana possession program as a Fairfax Criminal Lawyer and Virginia Defense Attorney
The glaring problem with this program would be easy to fix.
Simply add a sentence to the Virginia Code section dealing with possession of marijuana, and the first-offender portion in particular.
Add something to the effect of,
First-time Offender Program participants do not sacrifice the ability to later expunge a record, but only upon successful completion of the requirements under this section
This is all it would take. In reality, sometimes prosecutors will be willing to discuss a continuance if a client agrees to complete dozens or hundreds of hours of community service. This has the effect of allowing the client to expunge the arrest record. On the other hand, it may be something a charged individual is not willing to do, especially if he or she believes in their innocence.
Call 703.665.3719 or send us a message about your case. We will help if we are able, and if not, can put you in touch with someone who can.
Image Credits: “Marijuana Leaf” by Paul
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