Virginia Marijuana Law Gray Area in 2018: Fairfax Criminal Lawyer on VA Code 19.2-188.1

fairfax criminal lawyer marijuana possessionOur Fairfax criminal lawyer discusses a seemingly gray area when it comes to Marijuana laws in Virginia –  and marijuana law defense attorney explains, this issue is disputed between judges, prosecutors, and defense attorneys in Virginia.

The issue is Virginia Code 19.2-188.1. Among other things, it seems to allow an absolute right to have the alleged plant material tested, upon motion by the defendant or his or her attorney, at any time prior to trial.

The disagreement: most Virginia criminal attorneys agree that the law allows the accused to request a lab analysis at any time prior to the start of trial. Some judges and prosecutors would disagree, and believe the request must be made at some point prior to the court date. Note: court date and commencement of trial are not the same thing.

Some laws are easy to interpret and apply, while others can be relatively difficult. But according to our Fairfax Criminal Lawyer and Northern Virginia defense attorney, this is not such a law. In reality, it is possible that the real reason this law is sometimes scrutinized by judges and prosecutors is due to the fact that the Department of Forensic Science is backlogged with lab analysis requests, especially in Fairfax County. As a result, some possession of marijuana cases in Fairfax County are taking a long time to come to a resolution.

To get right to it, our Fairfax Criminal Lawyer suggests you consider the following points:

  • If you are charged with possession of marijuana, the government must give you or your attorney a form that states you may have it analyzed prior to trial to prove it is marijuana.
  • Even if you or your attorney is provided with this form prior to trial, the request to have the plant material tested may be made at any time prior to trial, including the day of the scheduled court date, so long as the trial has not started.
  • The laboratory is backlogged, and for samples from Fairfax County, an analysis may take 6 months or longer.
  • Many prosecutors and judges are frustrated with the backlog.
  • Defense attorneys sometimes request a lab analysis even after a case has been continued.

Form DC304 – The Virginia Marijuana Lab Test Form

19.2-188.1 VA Marijuana Law Form DC304

The Code of Virginia 19.2-188.1 (subsection B) states in-part as follows:

. . . In any case in which the person accused of a violation of § 18.2-250.1 [possession of marijuana in Virginia], or the attorney of record for the accused, desires a full chemical analysis of the alleged plant material, he may, by motion prior to trial before the court in which the charge is pending, request such a chemical analysis. Upon such motion, the court shall order that the analysis be performed by the Department of Forensic Science . . .

Note: the law does NOT say the court shall order the analysis ONLY IF the case has not been previously continued. Further, the law does NOT state that the court shall order the analysis ONLY IF the motion is filed prior to the court date. The law clearly states that the motion may be filed “prior to trial.” Every judge (as of date of publication) in Fairfax County interprets the law this way, except for a few.

Why do some judges and prosecutors hate this Virginia marijuana law and lab testing?

When a Virginia criminal defense attorney files such a motion, the case is essentially placed on hold until the results are back. In Fairfax County, VA, the lab results may take up to half a year or more. But it is neither the fault of the defense attorney or his/her client.

This law is explained in more detail here. Read the law itself, here. In a nutshell, this law states that if you are accused of possession of marijuana, you may request an analysis by the Department of Forensic Science, and that the request may be may any time prior to trial. The law goes on to state that the court “shall order” an analysis.

How has this law been interpreted in different ways in Fairfax County General District Court?

In Fairfax County General District Court our Fairfax criminal lawyer has noticed – in his opinion – two incorrect applications of this law. For example:

  • A Virginia criminal lawyer files a motion with the clerk (Form DC 304). This form should be routinely approved by the judge assigned to approve motions. In one instance, this motion was denied (even though it was filed days prior to the court date), and was marked “untimely.” The statute, 19.2-188.1, states this motion may be filed at ANY TIME PRIOR TO TRIAL. Therefore, there is no such thing as untimely, unless the defense attorney requests the lab analysis after the trial has started.
  • A Virginia criminal lawyer asks the judge to enter the Order for chemical analysis on the day of court. This involves the same form (DC304). Since the trial has not commenced, the motion should be granted. (*see, egregious example below).

*Egregious example from our Fairfax Criminal Lawyer

In one instance, a judge not only denied a motion for chemical analysis prior to trial, but also denied the motion a second time prior to trial, notwithstanding the fact that neither the defendant nor his/her attorney were provided with the required notification that the material could be sent to the lab, until about 5-10 minutes prior to trial.

When the Commonwealth (including police officers) fails to provide the notice of lab analysis form and the prosecutor proceeds to object to a motion for chemical analysis made prior to trial, (DC304), the only argument to be made by the government is that “any time prior to trial” means “any time prior to the court date.”

General District Court vs. Circuit Court

Marijuana possession cases are of misdemeanor status, and so they begin at the General District Court level. This level of the system is considered “not of record.” In other words, there are no trial transcripts (unless a defendant pays for a court reporter out of pocket). If a General District Court makes a mistake , then the defendant is stuck with the result, or, he or she may choose to appeal the case within 10 days to Circuit Court for a trial de-novo (new trial).

Virginia Marijuana Laws: the main statute prohibiting possession of marijuana is 18.250.1. Another law, 19.2-188.1, states among other things, that if you are accused of possession of marijuana in Virginia, that you have a right to have the plant material tested by the Department of Forensic Science (to make sure it is marijuana, rather than broccoli or oregano or some other legal plant).

The law states that the accused (or his/her attorney) may file a motion prior to the commencement of trial, and that the court shall order a forensic test performed. This motion may be filed on the day of court, if the trial has not officially begun.

Some laws are harder than others to interpret and apply.

But, other laws are (seemingly) cut-and-dry. This article addresses an area of critical importance to Virginia marijuana possession laws — the defense of possession of marijuana cases in Virginia – specifically, Fairfax County. In the view of our Fairfax criminal lawyer, the law discussed herein is an easy-to-interpret, and easy-to-apply law. There is not much room for interpretation (or misinterpretation).

The Virginia Marijuana Law – First Offender Program (dismissal but no expungement)

If you are faced with an upcoming court date for possession of marijuana, you may be eligible to have the charge dismissed upon completion of a drug program, payment of fines, community service, good behavior, and court costs. In many cases, the offender’s privilege to drive is suspended in Virginia for 6 months. The individual who wants to go this route may enter the program even if he or she does not have an attorney (assuming they are eligible, with no prior drug-related record). The main drawback, however, is that while the charge may be eventually dismissed, it is not expunged. This means that there will be a public arrest record – even though the charge is dismissed – on the individual’s permanent criminal record. Read more about expungement from our Fairfax criminal lawyer and marijuana defense attorney.

The reason people hire a local Virginia criminal lawyer or Fairfax defense attorney for possession of marijuana in Virginia is to increase the chances that the charge will be dropped, dismissed at trial, or amended to a non-drug offense. In each of these scenarios, the underlying public drug arrest record can be expunged…unlike those who elect to proceed with the first-offender (aka, 251) program. Read more on the first offender program here.

Request a consultation here, or simply call us at 703.665.3719. Our Fairfax criminal lawyer has handled hundreds of marijuana possession cases, as well as the expungements thereafter.

Photo Attribution: Image courtesy of Zuzuan at

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Brenton D. Vincenzes is a lifelong Fairfax County resident and Fairfax Criminal Defense Lawyer. He is a member of the Virginia Association of Criminal Defense Lawyers, National College of DUI Defense, NORML, and has been awarded the following in 2014-15: Top 100 Trial Lawyer (National Trial Lawyers) Top 40 Under 40 Trial Lawyer (National Trial Lawyers) Nationally Ranked Top 10 Under 40 Defense Attorney (National Academy of Criminal Defense Attorneys) 10 Best in Client Satisfaction for Criminal Defense (American Institute of Criminal Law Attorneys) Nationally Ranked Top 1% Attorney Award Recipient (National Association of Distinguished Counsel) As a local leader, Mr. Vincenzes mentors troubled youths, volunteers his time to serve at his church, takes select pro bono clients, and strives to improve the community. Mr. Vincenzes represents men, women, and juveniles through zealous and diligent advocacy, strategic planning, and skilled trial work preparation. Mr. Vincenzes' areas of criminal law practice are broad, and include most felonies and misdemeanors such as: reckless driving, DUI & DWI, drug offenses, assault and battery, domestic violence, assault on an officer, destruction of property, alcohol offenses, firearm offenses, larceny, shoplifting, embezzlement, fraud, and other theft offenses, and moving traffic violations among others. His private legal services are available in most Northern Virginia jurisdictions, including Fairfax County, Arlington County, Prince William County, Loudoun County, Stafford County, Alexandria, Manassas, Leesburg, South Riding, and other cities and towns.


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