Virginia Marijuana Possession Laws: Our Fairfax Criminal Lawyer Discusses Proof of Possession
I am a local Fairfax criminal lawyer who has represented clients charged with possession of marijuana in most Northern Virginia counties, cities, and towns. One of the biggest issues to fly under the inexperienced defense attorney’s radar is proof of possession. There are many ways Virginia marijuana possession cases are won and lost. Defense attorneys (and all lawyers, for that matter), are trained to spot issues. Criminal statutes define the conduct – or elements as we may say – of the offense. Prior case law determines how laws are applied to facts. A skilled and competent Virginia marijuana possession defense attorney can make all the difference. After reading this page, you should also be sure to read our firm’s main Drug and Marijuana Possession and Distribution information page. We cover the penalties for possession vs. distribution, weight thresholds (distinguishing between possession vs. possession with intent to distribute), and other issues (such as synthetic cannabis). Also, do not miss this article on the 251 disposition also known as the first offender program — for first-time drug possession defendants.
It is up to the Commonwealth to prove each element beyond a reasonable doubt. When it comes to defending marijuana possession cases in Virginia, there are many issues an experienced Virginia marijuana possession attorney and local Washington and/or Northern Virginia criminal lawyer ought to check for as he or she learns the facts of the case from his or her client, engages in the discovery process, or through the use of other investigatory methods.
What is possession of marijuana in Virginia? That sounds like a silly question to pose, but depending on the facts of a particular case, there may be a lot for your Virginia criminal attorney to dissect. Possession of marijuana is a drug offense and despite political movement throughout the country and federal government towards reformation of cannabis prohibition, the laws in Virginia currently penalize marijuana possession regardless of age.
This post addresses one of the most frequently encountered issues – at least in my experience as a Northern Virginia serving, local Fairfax criminal lawyer who has handled quite a few possession of marijuana cases in Fairfax County, Prince William, Herndon, Fauquier, Alexandria, and others. What is the issue?
VA Possession of Marijuana Key Issue: Dominion and Awareness
More precisely, the issue consists of the mental state of the defendant, and often requires an analysis of legal terms, actual possession and constructive possession (more on these terms in a moment). Finally, awareness of the presence of the illegal substance on the part of the defendant is often a question for the judge or jury, and there is no bright-line rule. Instead, a totality of factors and circumstances are examined and considered by the judge/jury. It takes a knowledgeable and experienced Virginia criminal attorney to thoroughly issue-spot.
Actual Possession vs. Constructive Possession
This has been covered before on our Virginia criminal law firm’s blog, but briefly, actual possession is exactly what it sounds like: the illegal item was actually possessed by the defendant. Example: marijuana is found in a baggy in a person’s pocket of the pants they have on.
Constructive possession refers to possession of something not on your person, but possibly under your control, within reach, etc.1
The first point any Virginia marijuana defense attorney or person researching the charge they face ought to grasp about the case law in Virginia is that actual possession is not enough to convict. It sounds strange, and will be made clear. Similarly, constructive possession is not enough to convict. The Commonwealth must prove something else. What is it?
The mental state requirement is knowing and intentional, meaning, the prosecution must prove that not only was the defendant in actual or constructive possession of the marijuana, but he or she was also aware of its presence (knowledge). Possession is considered a continuing offense – meaning, if a person is not aware of the presence of illegal contraband within their dominion or control, but becomes aware at some point, then the mental state requirement is met. Another important point: voluntary intoxication is not a defense to possession.2
Be careful to jump to conclusions as a non-attorney reading this blog, because the law is full of subtleties and exceptions. For example, one might assume that based on what was just explained in this paragraph, that a person would not be intentionally or knowingly in possession of marijuana if he thought it was something else… Wrong. Precedent tells us that the Commonwealth can satisfy the knowing/intentional mental state requirement by showing the defendant was aware of the presence of the item and its illegal nature.3
Examples from Real Cases
One of the most important possession cases is Ritter.4
Consider the following example to understand the principle this case stands for:
- Joe goes to a party where he knows people are smoking marijuana. He is aware of the presence of the marijuana, but he is not himself in possession. He is not smoking or using the marijuana, and never has made a claim that any marijuana is his.
- Brian receives a package at his house from out-of-state, but his mom becomes suspicious, opens the package, and gives it to law enforcement. Brian’s name is on the package and there is evidence that he paid for the package in advance.
Joe should not be convicted of possession of marijuana, if he is charged. Brian, on the other hand, may very well be convicted.
The following are fact patterns from Virginia case law. The names are fictitious, but the principles and cases are real (none of these fact patterns come from cases handled by Brenton Vincenzes or Vincenzes Law, PLLC). Read the short paragraph and then scroll down to see the answers.
- Jerry’s best friend is incarcerated. Jerry wants to help his friend out by delivering some clothing to the facility (a lawful thing to do, in this case). The articles of clothing allegedly contained drugs concealed inside.
- Terry picked up a baggie (a clear sandwich baggie). Evidence suggests Terry thought the bag contained drugs, and that money could be made from their sale.
Jerry should not be convicted based on his possession of the articles of clothing and nothing more to show knowledge.
Terry should be convicted based on his statements and knowledge.
How does the Commonwealth go about proving knowledge or intentional possession? As stated earlier, there is no hard and fast rule. Instead, many factors must be analyzed. The case law in Virginia, along with a healthy dose of common sense, reveals these factors (among others).
In many constructive possession cases, the following distinction is an important one: dominion and control over the illegal contraband or marijuana is not enough to convict, if that person was not aware of the substances presence.
How have the courts handled cases where proof of knowledge and awareness, plus dominion and control, is a major issue?
An inexperienced attorney who has not handled many possession of marijuana cases (or possession cases, generally), could easily grow frustrated upon a search for consistent case law in this area. But truth be told, there is a consistent principle to extract from the case law. A common type of case is one that involves a hotel room or similar scenario. Cases tell us that if there is evidence that the defendant rented a room by himself and in possession of a key to that room, then an inference may be drawn that he was aware of illegal drugs discovered sitting on a piece of furniture and in his backpack. On the other hand, the courts have distinguished this from cases where drugs are found in strange, hidden locations, such as a case involving drugs taped behind a mirror. Along those lines, if the evidence shows the defendant was aware of drugs near his or her feet in a passenger compartment of a vehicle, then awareness of the presence of more of the same illegal substance found in other areas of the vehicle may be inferred.7,8
Did it smell in the vehicle?
There is an argument to be made that if one is not familiar with, or has never been exposed to marijuana, it is possible to not be aware of the illegal nature of the substance or its presence. But often, the presence of an odor of burnt or unburnt marijuana is a factor that will count against the defendant who claims to not have been aware of the presence of the marijuana, especially if he or she has any prior marijuana-related charges.
In Virginia, there is no presumption that just because drugs are discovered in a vehicle, that the owner or driver was or is the possessor.6 Instead, we look to the factors we are currently discussing. Ownership and control/dominion over the vehicle is a factor at best, but not determinative.
Distance – or, proximity – is not enough (by itself) to secure a conviction for the Commonwealth.5 For example, if the only circumstantial evidence linking a defendant to marijuana found in a vehicle is the distance or proximity, that alone is not enough nor sufficient evidence according to case law in Virginia.
In one case, a passenger was said to be in possession of illegal drugs (constructive possession) because the following factors were said to be sufficient:
- The drugs were found along with a gun under the passenger seat,
- The gun was found to contain the defendant’s DNA, and;
- The defendant refused to open the glove box (more drugs were found upon a subsequent search).
Other cases have held evidence sufficient for constructive possession when drugs were within a person’s immediate control, such as under the seat or in a glove compartment and/or where a driver would typically notice the presence of illegal drugs prior to the arrest.
Fairfax Criminal Lawyer and Virginia Marijuana Possession Attorney’s
Top 2 Other Pointers about Marijuana Possession in Virginia
1 Bag of Weed, 1 Charge?
Many people have the misconception that when marijuana is found in a vehicle or on one person in a vehicle full of passengers, that one person will get stuck with the charge. This simply is not true. Possession does not have to result in a one-person one-charge outcome. Five people could be charged with possession of the same bag of marijuana (albeit unlikely, it is possible). 9
How much marijuana?
I often hear people tell me:
all that was found was shake
This may be important; however, there is no minimum amount of controlled substance. The courts have said that a modicum (less than a dose or usable amount of the substance) is all that is needed for conviction.10
In the News
Monday, July 28th, news broke of a measure before the U.S. House of Representatives to amend current federal drug laws so that a particular type of marijuana with low THC content can be made available to patients who are claiming it is reducing the frequency of seizures, among other health benefits.
Possession of marijuana, especially when charged as a first offense, tends to rank near the top of the list when it comes to the most commonly charged crimes in Northern Virginia. By frequency alone, it rivals reckless driving, another relatively common criminal charge many good people tend to frequently face.
If you or a loved one has been charged with marijuana possession in Virginia, your local Northern Virginia Marijuana Lawyer and defense attorney should be able to listen to the facts and provide you with an analysis that includes the possible issues the Commonwealth may have if the case goes to trial. Even if a case does not make it to trial, weaknesses in the prosecution’s case may very well lead to a favorable outcome.
In Virginia there is a first offender program, but it is not something one should automatically assume is the best way to resolve a charge. It may or may not be, depending on the individual’s circumstances, goals, and facts surrounding the case. If you or a loved one has been charged with possession of a controlled substance, including marijuana, or if the case has already been finalized and now you either regret the outcome or would like to expunge the record of the charge, send us a message or call us and if we are able to help, our Virginia marijuana defense attorney and local Fairfax criminal lawyer will be in touch as soon as possible.
Reach us at 703.665.3719.
If your loved one is currently being held without bond, or if the bond is too high, do not hesitate to call and leave a message, even if it is a weekend or late at night. If possible, we will try to respond as soon as we can.
References and Case Law: Possession of Marijuana Cases Cited by Local Fairfax Criminal Lawyer and Virginia Marijuana Possession Attorney, Brenton D. Vincenzes
 see Archer v. Commonwealth, 225 Va. 416, 418, 303 S.E.2d 863, 863–864 (1983).
 Henrico. Morris v. Commonwealth, 51 Va. App. 459, 466, 658 S.E.2d 708, 711 (2008).
 See generally Burton v. Commonwealth, 215 Va. 711, 213 S.E.2d 757 (1975).
 Ritter v. Commonwealth, 210 Va. 732, 173 S.E.2d 799 (1970).
 Behrens v. Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432 (1986).
 Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739 (1984).
 Adkins v. Commonwealth, 217 Va. 437, 438–439, 229 S.E.2d 869, 870 (1976).
 Nelson v. Commonwealth, 17 Va. App. 708, 440 S.E.2d 627 (1994).
 Womack v. Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351, 352–353 (1979).
 Robbs v. Commonwealth, 211 Va. 153, 155, 176 S.E.2d 429, 430 (1970).
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