Cannabis Crimes – by Fairfax Criminal Defense Attorney
It is no secret: many people are arrested quite frequently for marijuana and Cannabis related charges in Northern Virginia. Never be embarrassed or afraid to discuss a charge with a local Fairfax Criminal Defense Attorney – we are called to help people in situations just like the one you may be in right now. We serve most of Northern Virginia. If you want to know whether we can help you in Rockville, just ask us.
First and foremost: please learn this lesson from Professor James Duane, a law school mentor and trial practice professor Mr. Vincenzes studied under.
We understand the challenges, fears, and possible struggles you or a loved one could be going through. You should expect nothing but compassion, empathy, and wisdom from our Fairfax Criminal Defense Attorney and Virginia Drug Crime Defense Lawyer.
For drug crimes, our Fairfax Criminal Defense Attorney has studied thousands of cases related to possession, distribution, possession with intent to distribute, manufacturing, possession with intent to manufacture, distribution to minors, transportation into the Commonwealth, Virginia Drug Schedules, and marijuana-specific Code sections. We would be happy to answer any questions about an upcoming case by phone or email.
Quick On-Page Navigation Links
I. Our Fairfax Criminal Defense Attorney
II. Common Commonwealth Cannabis Crimes
1. Marijuana Possession
Special ‘First-Offense’ Dismissal Option
Commonwealth Burden of Proof
Subsequent Offense – Virginia Marijuana Possession
2. Marijuana Distribution (+ Possession w/ Intent)
Quantity of Drugs Relevant
Examples of Potentially Harmful Evidence
Penalties by Amount
One-Half Ounce or Less
Greater than One-Half Ounce up to 5 lbs.
More than 5 lbs.
3. Marijuana Manufacturing (Growing)
Third Offense: Severe Penalties
4. Transportation into Virginia
5. Distribution to Minors
Increased Penalties and Rule
Imitation Substances Distributed
III. Cannabis Crime Defense Theories
Illegal Search or Seizure
Weight Laboratory Errors or Officer Mistake (in distribution cases)
Defendant not Aware: When Cannabis is Found in Car or Home
Lighter Sentence: – if “Distribution was an Accommodation”
V. Synthetic Cannabinoids
Our Fairfax criminal defense attorney has dedicated an entire page to cover the Cannabis crimes in Virginia, for at least two reasons:
- In Virginia, Cannabis related charges account for the majority of drug arrests. In Fairfax County, recently law enforcement has been charging people with nearly as many marijuana offenses as reckless driving.1
- In Virginia, there are separate and unique drug laws for Cannabis crimes.
1 Fairfax County arrest records information gathered by our Fairfax criminal defense attorney from summer, 2013, show nearly 5.5% of reported charges in a given period as Cannabis offenses . . . that comes out to 51 out of 931. To put this into perspective, reckless driving just edged out marijuana charges, at about 60.
It is the opinion of this Fairfax Criminal Defense Attorney that in general, employers and prospective employers tend to be less willing to forgive drug charges as opposed to some other criminal offenses (e.g., reckless driving).
Compare reckless driving with a marijuana charge. Both are criminal charges which will stay on a convicted adult’s record forever, but that is about as similar as these charges get. A first-offense marijuana possession charge could lead to a maximum 30 days in jail, but a first time reckless driving conviction could lead to 12 months confinement.
Compare monetary fines: reckless drivers can be fined up to $2,500, but first-time marijuana possessors can be fined a maximum of $500.
We understand our clients’ concerns with regard to future employment issues stemming from a drug offense. If such concerns exist, our Fairfax Criminal Defense Attorney explains how those concerns can be addressed and possibly resolved. After the matter has concluded, your local Fairfax Criminal Defense Attorney can explain whether you qualify for expungement.
On this page, our Fairfax Criminal Defense Attorney covers Virginia marijuana offenses. Cannabis is the most commonly consumed illegal drug in the Commonwealth of Virginia. Our Fairfax criminal defense attorney handles many other matters, including reckless driving, DWI and DUI, larceny, property damage, traffic infractions, alcohol crimes, juvenile crimes, assault and battery, and other drug-related offenses.
If you are in a hurry and just care about looking at the potential penalties for a type of charge, the NORML website has a convenient penal chartthat is just a page long. Note: do not rely on any internet source; laws change, and case law does, too. Nothing on our website or any links from our website are intended to be relied upon nor used as legal advice. Therefore, there is no substitute for a discussing your charge with a legal professional or a local Fairfax Criminal Defense Attorney.
Our Fairfax Criminal Defense Attorney takes pride in ensuring that the criminal justice system operates in an impartial, unbiased, and constitutionally appropriate manner. No matter the particular charge, our clients are zealously and ardently represented. When jail time is inevitable, our goal is to achieve the most positive resolution given the circumstances. It is important to us that our clients understand:
- the nature of the charge or charges they are up against;
- their options going forward; and,
- the actions that they may be able to take to help their case.
At the Vincenzes Law Firm, “over delivering” is the standard. A service-level above and beyond what people expect is routine procedure. The different ways this principle manifests itself will vary case-to-case: It may be:
- as simple as our Fairfax criminal defense attorney offering to drive a client home (i.e., one who has no license);
- it may involve spending extra hours late into the night to perfect a written motion, even though it is not even close to the deadline; or,
- it may mean going to jail to meet with someone on a non-work day in order to get our client out of jail as soon as possible.
In Virginia, Cannabis has not been decriminalized. Even a first-possession charge is a criminal misdemeanor, punishable by up to 30 days in jail, loss of driving privileges, and a substantial fine. Will the status of the law change? Many states are moving that direction: recently, the Department of Justice announced that the Federal Government would no longer prosecute people for “marijuana offenses,” otherwise legal under state law.
The laws in Virginia surprisingly include slang. The Code of Virginia’s “definition” of “marijuana” is as follows:
“The term “marijuana” when used in this article means any part of a plant of the genus Cannabis”
At the law office home to our Fairfax criminal defense attorney, we only use the word, “marijuana,” when directly referencing the laws or communicating with the court. The reason we raise this subtle point is because the word, “marijuana,” traces its roots back to the early 1900’s, a time when racism in America ran rampant (and evidence suggests the word was contrived to promote racism against Mexicans).
[pulsehover_text preset_name=”sharebuttons”]Cannabis is not available in Virginia for most of the medical issues it can be used to treat. The law mentions cancer and glaucoma as treatable conditions, but there is no realistic way to obtain medial marijuana in Virginia at this time. With the recent aforementioned Justice Department’s stated position on Federal enforcement, perhaps more states, including Virginia, will add a measure to their ballot.
Washington and Colorado have legalized Cannabis (in purple), while other states are expected to follow. On this map, the dark green states have medical Cannabis laws, and have decriminalized the plant. Light green states have medical Cannabis laws, and “pea-green” states have decriminalized.
As you can see, Virginia has some catching up to do. Even if the laws in Virginia, in your opinion, are old and archaic, or, as some have said to me, “the laws are ill-founded and misinformed,” it is simply not worth the punishments. Within a few years, things are looking as if they could change.[/pulsehover_text]
In the Commonwealth, consequences for Cannabis crimes differ drastically depending upon many factors. In some cases, a viable defense might exist. On the other hand, if there is strong evidence against the accused, he or she may be wise to accept a lighter sentence in exchange for agreeing to plead guilty. If you have been charged and face a court date, your local Fairfax criminal defense attorney can explain to you whether or not he believes accepting a plea bargain is a good idea, given your facts and circumstances.
Fairfax Criminal Defense Lawyer Explains: Common Cannabis Charges
In Virginia and the rest of the United States of America, Cannabis is the most commonly used illegal drug. Therefore, it is no surprise that most drug arrests in the Commonwealth of Virginia involve Cannabis. The sentence one faces if charged with a drug offense involving Cannabis depends upon:
- the law under which the accused was charged;
- his or her prior record;
- whether there is an alleged intent to distribute or manufacture, and
- other factors which your local Fairfax criminal defense attorney will discuss with you at no-cost and as a part of the free initial consultation.
The most common Cannabis crimes (and in no particular order) in Virginia are:
- Possession (first offense);
- Possession (second or subsequent offense);
- Possession with intent to distribute; and,
- Manufacturing and intent to manufacture (which refers to “growing,” in the Cannabis context).
“My Virginia Uniform Summons Charge is 18.2-250.1”
Virginia has not legalized nor decriminalized Cannabis yet. As a result, first-time marijuana possession[i] is considered a criminal charge: it is an unclassified misdemeanor punishable by 30 days in jail, a significant fine, temporary loss of driving privileges, and/or other costs associated with treatment programs. Up to a $500 fine is authorized by law.
We mentioned at the outset of the Cannabis Crimes page that employment issues are a very scary consequence in many situations for those who have been charged with a drug offense. There is some good news if you are reading this and are faced with a first-offense charge. Our Fairfax criminal defense attorney can explain:
- how this dismissal process works;
- what will be required of you; and
- whether you qualify.
If you have never been convicted of committing a drug offense involving marijuana, narcotics, synthetic cannabinoids, depressants, stimulants, or hallucinogens, in neither Virginia nor any jurisdiction in the U.S., and if you have never had a possession charge dismissed because you complied with probation as described in this section,v then you may allow your finding of guilt to be deferred. The guilty judgment will be entered upon failure to complete he court ordered programs. You will then go back to court, and if the judge finds you in compliance with the terms and conditions, the case will be dismissed. Note: this is a one-time-only dismissal. It will not remove an arrest from remaining on a criminal record. If expungement is available, or if you are unsure, then you may wish to talk to a Fairfax criminal defense attorney to make an attempt to clear the record.
In the case of probation and a deferred judgment, your local Fairfax criminal defense attorney reminds you that the the case will be dismissed only if you successfully:
- Complete the court ordered drug and/or alcohol assessment and treatment program.
- Pay all fees for such drug programs and classes (usually included in court costs);
- Remain drug and/or alcohol free for the probationary period;
- Submit to random drug tests;
- Submit fingerprints to law enforcement;
- Make best efforts to find employment; and
- Complete community service (24 hours for a misdemeanor Cannabis crime, or 100 hours for a felony).
If a condition is violated, then the deferred judgment will likely result in a finding of guilt. You would not get back any money or out-of-pocket costs (time and money to travel to the program, etc..). The dismissal is not a finding of guilt but it will be considered a conviction in a case if you are ever charged again with possession of an illegal drug. In other words, the “deferred judgment” and dismissal authorized by statute is only an option in the case of a first offense.
Note: even if your case is deferred so you can comply with the court’s terms and conditions as described above, you will still be subject to the driver’s license consequences (typically six months loss of driving privileges, but may be able to apply for a restricted driver’s license). A restricted license will allow you to travel to the treatment program and classes; school; emergency rooms and medical offices; places of worship; and other specific places. Your local Fairfax Criminal Defense Attorney can elaborate and collect the information he or she needs to submit your restricted driver’s license application on your behalf.
If you have questions about expungement…which is the legal process for removing a criminal charge from a person’s criminal record. … then please call our Fairfax Criminal Defense Attorney and Virginia Criminal Lawyer. You can easily message us before you call, either to tell us about your case, or, if you just want to let us know what time we should expect your call (or if you would prefer us to call you at a specific time, you may request we do so). If you want to call right away, our number is 1-888-695-6565 (toll free). Email our Fairfax Criminal Defense Attorney at: Brent@VincenzesLaw.com. Spam is not tolerated, and any spam received will result in the sender being “flagged” and reported to the appropriate authority.
Your Fairfax Criminal Defense Attorney vs. Commonwealth: “Awareness”
The Commonwealth must prove, beyond a reasonable doubt, that you possessed – or constructively possessed – the Cannabis. If the case is not clear as far as who truly possessed the Cannabis, then you may still be accused for maintaining possession, by way of, “constructive possession.” It is easy to think of a scenario when someone constructively possesses an item. In situations where Cannabis has been seized from a vehicle with multiple passengers , or, from a home where multiple people live, there may be a dispute as to who or whom possessed the marijuana.
For example: Bob lets Greg borrow his car for the weekend. Greg returns the car in perfect condition. He even filled up the gas for Bob. Bob is driving to work the next morning, and is stopped for making an illegal U-turn. The officer notices a bag containing a small amount of marijuana on the back seat. The bag was out of Bob’s line of vision, and he had no idea why there would be an illegal substance in his vehicle. It obviously belongs to Greg, who left it in the car. The police officer does not know Greg, and only has Bob to arrest. After all, from the officer’s point of view, Bob is the only person who he can arrest for the offense. “I will let the lawyers and judges figure it out,” the officer thinks to himself…
The mere presence of an illegal substance found in a home or vehicle does not give rise to the presumption that the drugs belong to the owner. The location of the drugs, and the person’s proximity to the drugs are, however, factors to be considered, along with numerous others.xv If your charge involves a “constructive possession” allegation, then many factors need to be analyzed by a Virginia Criminal Lawyer. If your charge involves a Cannabis crime, call our Fairfax Criminal Defense Attorney and Cannabis Crime Defense Lawyer.
A 2nd or subsequent possession conviction (even a conviction in another state) will result in a Class 1 misdemeanor. Your local Fairfax criminal defense attorney can give you a full explanation of the consequences you face, or might face, depending on your circumstances…but for a Class 1 misdemeanor, the law provides punishments up to:
- jail up to 12 months,
- loss of driving privileges.
If you are not in the United States legally, going to jail could lead to serious immigration issues and potential risk for deportation. If you are charged with committing a criminal offense and are not in the United States legally, you should seriously consider finding a Fairfax criminal defense attorney as well as an attorney who focuses on Immigration law. For these people, it is important to avoid jail, and every possible relevant defense should be analyzed and discussed with a local Fairfax criminal defense attorney. Our Fairfax criminal defense attorney and Virginia criminal lawyer can put you in touch with an immigration attorney.
Marijuana distribution is punished the same as “possession with intent to distribute.” Whether the police issue a charge for “intent to distribute” depends on facts and circumstances you will need to communicate as accurately as you can when you meet your local Fairfax criminal defense attorney. Distribution may be punished with a very serious sentence, so it is a good idea to talk to a lawyer as soon as you can.
Virginia Criminal Lawyer: Distribution Basics
“My Virginia Uniform Summons Charge is 18.2-248.1 (it may also include: (a)(2))”
Possession of marijuana / Cannabis in Virginia is punished more severely if it is alleged to have been gifted, sold, or distributed, OR possessed with “intent to distribute.”ii The severity of the consequences will depend on many factors, including
- the amount of Cannabis;
- the convicted person’s prior record;
- the evidence against the person charged; and,
- the admissibility of that evidence.
A proficient local Fairfax criminal defense attorney and Virginia Criminal Lawyer will object if the Commonwealth Attorney, police officer(s), or other witnesses attempt to proffer objectionable testimony or submit other forms of non-rule abiding evidence. One of the biggest factors taken into consideration when the police and Commonwealth Attorneys try to determine whether possession, or possession with intent to distribute is the appropriate charge, is the quantity of drugs found/seized. The more drugs, the less likely authorities will be of the opinion that they were possessed for solo-recreation, or, personal use (mere possession).
If police find only a small amount of Cannabis, then they should infer that it was for personal use. But when there is a large quantity, (over one-half ounce), possession with intent to distribute becomes the more likely charge.
It really depends on what other evidence the Commonwealth has, if any. When only circumstantial evidence is used by the Commonwealth Attorney to prosecute the defendant for possession with intent to distribute, then the quantity possessed might be considered.
If the amount of marijuana in your case is on the line (very close to a half-ounce), then you should tell your local Fairfax criminal defense attorney as soon as possible, so you do not run the risk of forgetting the weight as you remember it to be. Virginia case law tells us this: quantity alone could potentially be enough to establish intent, if the quantity is greater than what would be used for personal use.xviii
But when drugs are found with these items, it may be more problematic for the defendant, at least to the degree that the evidence against him is admissible to infer intent to distribute.
Call your local Fairfax Criminal Defense Attorney to find out whether the case against you is strong, weak, or somewhere in between. Plus, discover what the possible punishment may be, and provide your input for our Virginia criminal lawyer to consider when formulating his, “theory of your case.” We use the phrase, “theory of the case,” to refer to the main strategy and/or argument to be used at trial or when negotiating a favorable agreement.
Here are some items known to “tip the scales” in favor of distribution as opposed to personal-use possession (no pun intended). [pulsehover_text preset_name=”sharebuttons”]
- Digital scales
- “shake” or “kief” on the floor or tables
- plastic baggies
- vacuum sealers
- unusual amounts of money suggesting profit (negates an inference of personal use)xvii
- List of numbers of known drug users/buyers/bigger sellers
- Other Cannabis related packaging or shipping supplies
Three large aspects encompassed by legal representation from your local Fairfax Criminal Defense Attorney includes: analyzing statutes; applying your facts to the statutes; and, applying previous case holdings to your facts. When it comes to whether or not packing supplies can be used as evidence against an individual charged with “intent to distribute,” the packaging alone is not enough. There must be additional evidence to suggest the charged individual did not receive the marijuana in the package for personal use.xvi
Whether you can be convicted of possession with intent to distribute will depend on the totality of all of your facts and circumstances. It is vital to tell your local Fairfax Criminal Defense Attorney everything you can remember, and not to forget to disclose anything.
We never judge, and are here to help you to the greatest extent possible. To defend you as best as we can, it is important to tell all facts to your local Fairfax criminal defense attorney.
Every drug case needs to be analyzed according to a large body of prior case law decisions. The statutes are an important authority, but so are cases from the Virginia Court of Appeals, United States Supreme Court, and many others. The statutes help your local Virginia criminal lawyer explain the maximum sentences, class of felony or misdemeanor, and the basic elements of the crime. However, the information used to formulate a “theory of a case” (or, a defensive strategy), encompasses more. These additional sources are consulted.
To start with, our Fairfax Criminal Defense Attorney researches relevant statutes and corresponding cases, some of which are found in the Code of Virginia, “notes.” Before formulating any argument, written or verbal, our Fairfax criminal lawyer checks the cases to make sure all of them are “good law” (not overruled). Once the electronic source-checking tool affirms the case as “good law,” additional cases may be searched for and used as necessary.
It is the opinion of our Fairfax criminal defense attorney that drug crimes are a very unique area of criminal law, especially in light of the judicial, Constitutional, and statutory tests, language, and requirements pertinent to most cases. Every single offense must be studied; the breadth of the “totality of the circumstances” analysis is one reason why every fact is so important.
In one case in Virginia, evidence was sufficient to support a conviction for possession with intent to distribute drugs based on a large quantity found within the defendant’s reach; other evidence suggested the defendant had “left” nearly $2,000 worth of drugs in a taxi; and defendant made a secretive hand movement upon seeing police,xv which made matters even worse. If you contact our Virginia Marijuana and Cannabis Defense Firm, our Fairfax Criminal Defense Attorney will review specific cases from the past 20-30 years which will help you understand how the courts in Virginia have ruled on similar issues and if possible, when ruling on issues arising from fact patterns similar to that of your own.
If charged with distribution or intent to distribute, the offense may be a misdemeanor or felony. The only time it may be charged as a Class 1 misdemeanor is when the amount of the substance totals no more than one half of an ounce. A Class 1 misdemeanor is punishable by up to a year confinement (jail), a fine up to $2,500, and loss of driving privileges. It will also remain on an adult’s criminal record for life, which can lead to employment issues.
For reference purposes, the picture below is an image depicting four one ounce baggies containing marijuana. One-half of an ounce is one-half of one of these bags. Note: depending on the type of marijuana, strain, and dryness, one-half of an ounce of a particular sample may look like a different size or amount when compared to a different sample.
We urge you to ask our Virginia criminal lawyer about expungement before your case is heard, assuming keeping a clean record is important to you. If you would like to maintain expungement eligibility, then it would be unwise to plead guilty. For more information about expungement as it relates to your case, call our Fairfax Criminal Defense Attorney as soon as you can. The more you wait, the worse the chances of finding someone who can help you.
The street value for this amount of Cannabis is anywhere between $100 to $250, depending on region, quality, and legal status. The point is, one-half ounce of Cannabis is a relatively small amount, at least in terms of monetary value. For frame of reference: in places where Cannabis is legal, it is not uncommon for a medicinal user to possess up to 8 ounces (dried), personal medical consumption. Our Fairfax Criminal Defense Attorney is of the opinion that Virginia lawmakers have not fully considered or accurately studied the true and realistic quantity of Cannabis that some people keep on-hand for medicinal and/or personal recreational use, with no intent to distribute.
In many cases, the amount of Cannabis in an ‘intent to distribute” case exceeds one half of an ounce. It is common logic drug dealers buy in bulk, and sell in smaller quantities. When a drug seller is caught, many times he or she has large quantities in their possession. This logic is not without its imperfections. For example, a low level drug dealer might buy a high quality half-ounce of marijuana for $200, and then sell it to 14 buyers each, at a price of $25 per gram (resulting in a $150 profit). On the other hand, a 94 year old cancer-patient who suffers severe pain could feasibly purchase several ounces to use alone. This is why it is important for your local Fairfax criminal defense attorney to examine all of the other facts surrounding a case. It is dangerous for law enforcement as well as defense attorneys to over analyze the quantity of the plant seized. It deserves analysis, but not by itself; always with other facts.
Sometimes, there are defects in the law enforcement operations and a case can be won on technical grounds and at a preliminary phase. Talk to your local Fairfax criminal defense attorney if charged, and be sure to tell him or her if you believe any misconduct occurred. Similarly, make him or her aware if you feel as if your rights have been violated in any way.
If the amount of Cannabis is greater than one half of an ounce (1/2 OZ), but not more than five pounds (5 lbs.), then the offense is a Class 5 felony. To compare felony “Classes,” our basic felony “Classes” in Virginia ‘infographic’ may be worth taking a look at; for misdemeanor comparisons, see our Virginia misdemeanor Classes video and post.
A Class 5 felony is punishable by one to 10 years in jail, a $2,500 fine, and “discretionary” confinement up to 12 months. Ask our Fairfax criminal defense attorney about the difference between the maximum authorized sentence and discretionary confinement. You can bring this up when you discuss the basics of your case during your free initial consultation.
If convicted of possession with intent to distribute, or distribution involving more than five pounds (5lbs.), the applicable jail sentence is five to thirty years (5 to 30).
Manufacturing (growing) marijuana, or possession with intent to manufacture marijuana is a Class 4 felony. If, however, the person charged was “manufacturing,” or growing for his or her personal use only, it should not result in a felony with a hefty jail sentence following conviction under this lawii, because the law states:
“Any person who manufactures marijuana, or possesses marijuana with the intent to manufacture . . . not for his own use is guilty of a felony punishable by imprisonment of not less than five nor more than 30 years and a fine not to exceed $10,000.”
A third felony conviction (or subsequent) is punished by even harsher penalties provided for by statute: potential life in prison. At a minimum, a convicted person under this subsection of the lawii faces five years in prison, and a fine up to $100,000. The mandatory minimum is five years, which means there is no discretion for the judge to potentially sentence the convicted individual to less active jail time. Immediately call your local Fairfax criminal defense attorney if you have been charged and want to know what kind of consequence(s) you face.
Is it a prior offense if I have not been convicted?
When a prior offense has been committed or alleged to have been committed, but the charged individual has not yet been convicted, people often want to know whether it will still be considered a prior offense. Virginia courts have addressed this, holding for an enhanced penalty to apply, it does not necessarily require the accused to have been convicted of a first crime before the time alleged to have committed the second.viii
If you have a pending Cannabis charge you would be wise to speak to a local Fairfax criminal defense attorney. It is especially important to tell him or her about any previous drug offenses, even those arising in different states. If the laws are “substantially similar” to the law(s) in Virginia, then it is possible the Commonwealth Attorney could use such prior offenses to amplify the penalties you face.
Your local Fairfax criminal defense attorney can determine whether or not a prior offense was truly “substantially similar,” or if the warrant, indictment, or information is flawed.
In one case in Virginia, the defendant was arrested for drugs found in her home. The police got the warrant to search the home after they stopped her vehicle. The initial stop was without reasonable suspicion, and was unlawful…as a result; the Court of Appeals ruled that the evidence should have been suppressed.ix
A technical defense or preliminary motion could prevent a case from proceeding to trial. Your local Fairfax criminal defense attorney is happy to tell you his thoughts as to whether or not such a strategic move would be feasible given your unique case. Police officers can perform a lawful pat-down for their own safety. In one case, a person was lawfully patted down as a result of weapons found in another person’s house. Despite the fact that the pat down itself was legal, it was not legal for the officer to search that person’s pockets. The plastic baggy containing the drug in this case was not something the officer could feel through the pocket as a potential threat (weapon).x
Case law gives the general premise of this section: the weight of the marijuana, excluding stalks and sterilized seeds, is what determines the grade of the offense.xix
Our Fairfax criminal defense attorney likes to point out this case, where a conviction for felony possession with intent was reversed when the Commonwealth was not able to prove that the Cannabis weighed more than one-half ounce not counting seeds and stems. In that case, the officer who performed the search testified that the bags contained Cannabis, stems, and seeds. But the officer never specifically asked the laboratory to weigh just the buds and not the stems and seeds. Similarly, the laboratory did not report that they weighed anything other than the stems, seeds, and Cannabis buds together.xx
[pulsehover_text preset_name=”sharebuttons”]If charged with possession of marijuana and it was found in a car or home belonging to you, there is no legal presumption, absent other evidence, that it belonged to you or another owner of the place where it was found.[/pulsehover_text]
Sometimes, the police charge individuals with “constructive” possession. Essentially, this means the drugs are treated as within your possession, despite the fact that they are not in your hands, pockets, or otherwise “on your person.” It depends on any acts, declarations, or behavior which would support the notion that the drugs were subject to the defendant’s control and dominion.xii
Similarly, in order for the Commonwealth to secure a conviction, they must prove that the charged individual was aware of the nature and presence of the Cannabis. But note: more than one person can be charged with mutual possession of a drug.xi
In another Court of Appeals ruling, the evidence was lacking to prove possession in a case where the drugs were found on rear floor of a vehicle with four passengers, and the defendant made no suspicious movements before or after the stop.xiii
The distance you were at the time the drugs were found is sometimes relevant and may be something the Commonwealth uses against you, to infer your knowledge of the presence of the drugs. But the mere proximity to drugs is not enough evidence by itself to infer possession.xiv If you were not close to the drugs, your local Fairfax Criminal Defense Attorney may use such a set of facts to one’s advantage.
This is not a defense by the true definition of the word, but certain facts can lead to a much less serious sentence. The Virginia Code section applicable to those charged with distribution or intent to distribute, give, or sell Cannabis includes a portion relevant to those who were not dealing or giving drugs in exchange for a profit or benefit, and who did not induce the recipient to use or become addicted to Cannabis:
“If such person proves that he gave, distributed or possessed with intent to give or distribute marijuana only as an accommodation to another . . . not with intent to profit [including any benefit either presently or expected to receive in the future] . . . [and when the person did not] . . . induce the recipient or intended recipient . . . to use or become addicted to or dependent upon [such Cannabis], he shall be guilty of a Class 1 misdemeanor.”
If, however, the recipient is an inmate or in a correctional facility, then even when such distribution was for an accommodation, it is a very serious Class 4 felony. Class 4 felonies are punishable by two to ten (2 to 10) years in jail and a fine up to $100,000.
There is a distinct felony applicable to those charged with transporting with intent to distribute five or more pounds of marijuana into the Commonwealth of Virginia. This specific offenseiii is punishable by at least five years in jail (up to 40 years), with a mandatory minimum sentence of three (3) years active jail time. The defendant in such a case also faces a fine up to $1,000,000.
Subsequent Transportation Offense – A subsequent transportation offense requires a 10 year mandatory minimum jail sentence!
We have discussed several factors which will amplify the consequences for what would otherwise be a less-serious marijuana offense. Distribution to a minor is an extremely serious offense. It could lead to up to 50 years in prison.
- Knowingly or intentionally distributing the drug to a minor person who is three or more years younger, or
- Causes a minor to “assist” with distribution of marijuana.
If convicted, the individual would face a prison sentence of 10 to 50 years, and a possible $100,000 fine. If an ounce or more of Cannabis is found by the court to have been involved, then the minimum active jail sentence is five years (which cannot be suspended). The minimum active sentence is two (2) years for less than an ounce of marijuana or synthetic cannabinoids. Your local Fairfax criminal defense attorney can explain to you whether the arrest was legal, and will ask you questions to find out about the true nature of the charge. If a defense exists, he will discuss it along with any other viable defense theories.
A different section of the distribution to minorsvi law makes it illegal for an adult to:
- Knowingly or intentionally distribute “any imitation controlled substance” to a minor who is three or more years younger; or
- Causes a minor to “assist” with distribution of imitation substance.
The “imitation” violation is the least serious type of felony (Class 6), but still punishable by years in jail and thousands of dollars in fines. The judge can infer distribution in a case involving an imitation substance, based on a prior, somewhat recent distribution offense for the same or similar substance.vii
“Synthetic Cannabinoids” are defined by the Virginia Code. Common terms used to refer to synthetic cannabinoids include “Spice,” “K2,”and “Fake Weed.” Sometimes, these products produce a high similar to marijuana, but often much stronger and with greater health risks. The law in Virginia defines “Synthetic Cannabinoids” as “any substance that contains one or more cannabimimetic agents.” What is a “cannabimimetic agent?” The law lists numerous chemicals: you can read view the statute here.iv
Synthetic Cannabinoid Possession
In Virginia, a person is guilty of a Class 1 misdemeanor if he or she is convicted of intentionally or knowingly possessing the synthetic cannabinoid. A Class 1 misdemeanor is punishable by up to a year in prison and a $2,500 fine.
Synthetic Cannabinoid Distribution and Intent to Distribute
Unlike mere possession without intent to distribute, a violation of the synthetic cannabinoid distribution or intent to distribute provision of this law results in a Class 6 felony, if convicted. In other words, that could mean 12 months to five years and a $2,500 fine.
Synthetic Cannabinoid Manufacturing and Intent to Manufacture
The manufacturing of synthetic cannabinoids is perhaps better suited to the word, “manufacture,” as opposed to its natural Cannabis law counterpart. Obviously, Cannabis is “manufactured” by its biological growing process. On the other hand, synthetic cannabinoids are manufactured through a different, unnatural process: a process sometimes involving the “spraying” of legal herbs with a liquid form of the illegal synthetic cannabinoid chemicals.
Be Careful! Synthetic Cannabinoids are Illegal and Very Dangerous
The reason why we feel it is important to urge extra caution when it comes to synthetic cannabinoids is due to the uninformed nature of many of the people who use and abuse these drugs. For a brief period in American history, some synthetic cannabinoids were not illegal. To make matters more complicated, some of these drugs were sold in various states, even at gas stations and convenience stores. As if that were not enough, the makers of these products have been known to change the active chemical in a way so as to attempt to escape the law. Not only are many synthetic cannabinoids illegal under Virginia law, but many are also illegal under Federal Law, too. If you have some “potpourri” or “bath salts” labeled item, call your local Fairfax criminal defense attorney to find out if it is something you would be wise to turn in, destroy, or keep (if it is legal).
The health consequences can be severe. There are reports from users who have suffered hallucinations, seizures, panic attacks, cardiac issues, and depression among other side effects. We strongly urge you to never use synthetic cannabinoids, and if you have a loved-one or friend with a problem, confront them about it.
People often want to know, “is it legal in Virginia to have a bong,” assuming I only smoke tobacco out of it? The Virginia Code does not have a section or statute stating simple possession of most paraphernalia, like glass pipes and bongs, is a crime. However, certain items can lead to trouble, if circumstances suggest the intention to use such otherwise legal materials for illegal drugs. For example, syringes and drug packaging supplies can lead to a criminal charge .
Sometimes paraphernalia is a charge of its own. Other times, the paraphernalia is something that led the officer to initiate a search or other investigation, which in turn may have led to the seized drugs.
When someone has a bong or pipe, their intention may be to only use it for smoking legal tobacco. But if even on a single occasion, that bong or pipe is used to smoke some Cannabis, then the pipe or bong now is illegal…because the residue could support a charge for possession of Cannabis itself.
Distribution of paraphernalia is illegal if the seller has reason to know the product(s) will be used for illegal drug use or transfer.
If you are facing a marijuana charge, or possession or distribution of paraphernalia, you should take advantage of one of the local Fairfax criminal defense attorneys by asking whether a free consultation date is available on a day and time convenient for your schedule.
In Virginia, it is a criminal misdemeanor to possess or distribute controlled paraphernalia, which includes:xxi
- Hypodermic syringes
- Needles or other device to administer dangerous substances by injection
- Gelatin capsules
- Glassine envelopes
Packaging supplies: when suitable for individual quantities of illegal drugs and an apparent intention to use the item for the illegal manufacturing or distribution of a controlled drug
Evidence that can be considered in such a case includes:
- close proximity to the items,
- equipment commonly used to make the substance,
- scales, sieves,
- measuring spoons
- procaine hydrochloride,
- quinine, or
- any controlled drug or
- machine for production of controlled drugs
Nothing on this page is legal advice, and is only informational: as a result, we encourage any person charged with a drug offense in Northern Virginia to speak in-person with one of the a skilled local Fairfax criminal defense attorney. The current “state” of Virginia is one of “marijuana prohibition.” If you want to make a difference, visit and join NORML and/or write to your governor or other officials in Virginia.
Our Fairfax Criminal Law Firm offers a free consultation with no set maximum time limit. In addition, we offer discounts to students, education professionals, senior citizens, active or retired U.S. service members, firefighters, state and federal government employees, and those who “like” our firm on Facebook.
The Code of Virginia
[I] § 18.2-250.1. Possession of marijuana unlawful.
[ii] § 18.2-248.1. Penalties for sale, gift, distribution or possession with intent to sell, give or distribute marijuana.
[iii] § 18.2-248.01. Transporting controlled substances into the Commonwealth; penalty.
[iv] § 18.2-248.1:1. Penalties for possession, sale, gift, or distribution of or possession with intent to sell, give, or distribute synthetic cannabinoids; manufacturing.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text][v][/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text] § 18.2-251. Persons charged with first offense may be placed on probation; conditions; substance abuse screening, assessment treatment and education programs or services; drug tests; costs and fees; violations; discharge.
[vi] § 18.2-255. Distribution of certain drugs to persons under 18 prohibited; penalty.
[xxi] § 54.1-3466. Possession or distribution of controlled paraphernalia; meaning of controlled paraphernalia; evidence; exceptions
[“Paraphernalia Laws”] refer to:
§ 18.2-265.1. Definition
§ 18.2-265.2. Evidence to be considered in cases under this article
§ 18.2-265.3. Penalties for sale, etc., of drug paraphernalia
§ 18.2-265.5. Advertisement of drug paraphernalia prohibited; penalty
§ 54.1-3466. Possession or distribution of controlled paraphernalia; meaning of controlled paraphernalia; evidence; exceptions
§ 54.1-3468. Conditions to dispensing device, item, or substance; records
§ 54.1-3469. Storage, usage, and disposition of controlled paraphernalia
§ 54.1-3470. Obtaining controlled paraphernalia by fraud, etc.
Virginia Case Law
[vii] Werres v. Commonwealth, Va. App. 744, 454S.E.2d 36 (1995).
[viii] Able v. Commonwealth, 16 Va. App. 542, 431 S.E.2d 337 (1993).
[ix] Mozelle v. Commonwealth, No. 1734-00-1, 2001, Va. App. LEXIS 521 (Ct. of Appeals Sept. 25, 2001).
[x] Murphy v. Commonwealth, 264 Va. 568, 570 S.e.2d 836, 2002 Va. LEXIS 159 (2002).
[xi] Robbs v. Commonwealth, 211 Va. 153, 176 S.E.2d 429 (1970)
[xii] Wilkins v. Commonwealth, 18 Va. App. 293, 443 S.E.2d 440 (1994).
[xiii] Tables v. Commonwealth, No. 1419-99-1 (Ct. of Appeals Feb., 29, 2000).
[xiv] Wright v. Commonwealth, 217 Va. 669, 232 S.E.2d 733 (1977).
[xv] Eckhart v. Commonwealth, 222 Va. 447, 281 S.E.2d 853 (1981).
[xvi] Monroe v. Commonwealth, 4 Va. App. 154, 355 S.E.2d 336 (1987).
[xvii] Servis v. Commonwealth, 6 Va. App. 507, 371 S.E.2d 156 (1988).
[xviii] Dukes v. Commonwealth, 227 Va. 119, 313 S.E.2d 382 (1984).
[xix] Guzman v. Commonwealth, No. 1211-93-2 (Ct. of Appeals June 7, 1994).
courtesy of freedigitalphotos.net
“Marijuana” by scottchan courtesy of freedigitalphotos.net
“Marijuana Leaf” by Paul courtesy of freedigitalphotos.net
“Smoking Addiction” by mack2happy courtesy of freedigitalphotos.net
“Handcuff” by nixxphotography mack2happy courtesy of freedigitalphotos.net
“Cctv Camera With Blue Sky Background” by khunaspix courtesy of freedigitalphotos.net
“100 Dollar Bills” by Boaz Yiftach courtesy of freedigitalphotos.net
Marijuana in Hand: via flickr.com, RObz, “acci0n” ID: 408309340
Map of States: Wikipedia commons – Lokal_Profil
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