Dave Albo – Attorney
Dave Albo – AttorneyDo I need a lawyer for a first offense Possession of Marijuana?
(Note: This article will be outdated on July 1, 2020 when a new law in Virginia takes effect. That law make Possession of small amounts of Marijuana a civil fine of $25. Possession of less than 1 oz is presumed “possession” and thus a civil crime as opposed to possession with the intent to distribute which is still a crime.) I was in Fairfax County General District Court Criminal docket and there were nearly 30 people charged with Possession of Marijuana. Do they need an experienced Possession of Marijuana Lawyer Fairfax County VA? In my opinion, for a first offense, it is not necessary, but if you have the money, it would be smart.
First of all, the fact that there are 30 people charged with Possession of Marijuana nearly every day of the 250 days a year Fairfax County hears cases, is a good argument for legalizing it. So many people in Virginia just do not regard Marijuana as a bad thing. I imagine that in the 1930’s during Prohibition, it was the same thing. Throngs of people who, despite a law making possession of alcohol illegal, drank anyway and were busted for Possession of Alcohol. Eventually the government gave up because no one was paying attention to the law. Be that as it may, until the law changes, a Possession of Marijuana is a Class 1 Misdemeanor crime in Virginia! So, you need to think this through. Just because it is legal in some form in 20+ states in the US does not mean it is legal in Virginia.
Do you need a lawyer? First of all, there is a program called “251 Disposition” and in Fairfax County, the Court will allow any first offender the opportunity to do this whether or not the defendant has an attorney. This “251 Disposition” is slang for VA Code 18.2-251. It is more complicated than this (if you want all the details look it up on line), but basically, you plead guilty (or not guilty and agree that if it went to trial, you would be found guilty). The judge then does not enter a final order of guilt. Instead, he continues the case for about 6 months. If you successfully complete community service, complete a drug education class, and get no further violations, then the case will be dismissed. Also, your driver’s license gets suspended for 6 months, but you can get restricted driving privileges to go to and from work, school, child care, etc. (Consult the Virginia Code for all the reasons you may be allowed to drive). If you want to avoid the license suspension, then you can do extra community service. So, if you can do all of this, it is a guaranteed way to get the case dismissed and your really don’t need a lawyer in Fairfax County, that is.
But is this “251 Disposition” too good to be true? Many people find out the hard way that it is not the panacea to their problems. Judges do not tell people this in court, but an experienced Possession of Marijuana Lawyer Fairfax County VA should warn you that it will create a criminal record, and you cannot get it expunged (a.k.a. erased) from your criminal record. Never! It stays on your record for the rest of your life. Your criminal record will say, “Charged Possession of Marijuana – Dismissed.” The only way to get it expunged is to get the Prosecutor to drop the charge (e.g. “nolle prosequi” which is Latin for “not prosecute”) or go to trial and win.
Every month or so someone calls me about getting their charge expunged, and I have to inform them that with a VA Code 18.2-251 Disposition, they cannot get it expunged. Their response is “No one told me that…” So that is why you should consult a drug attorney prior to going to court. As stated above, you really don’t need an attorney to get the 251 Disposition – the Judges in Fairfax and most other Jurisdictions offer it to everyone. However, you need an attorney to find out if you can get the Prosecutor to nolle pross, or if you can go to trial and win.
The 18.2-251 Disposition is only available to people who have never been previously convicted of possession of an illegal substance. In addition, the 18.2-251 Disposition is a one-time thing. So, if you got it before, you can’t get it again. If you have a previous charge or have gone through the 18.2-251 Disposition before, then you really should hire an experienced Possession of Marijuana Lawyer Fairfax County VA. This is because you are now looking at having an actual drug conviction on your record. That may not matter to you. Maybe your future employers won’t care. After all, it is “just marijuana.” But what if you are in a regulated profession (e.g. requires a license from the government like commercial truck driver, dental hygienist, doctor, lawyer, realtor…)? What if you have a security clearance? I don’t know if you would lose your license or your clearance. You would need to consult a lawyer that practices in the areas of licensure or security clearances. But if you believe you can’t afford to get a drug possession conviction, then you need to go for the win – and while there is no law that says you have to have an attorney, practically speaking, it would be extremely difficult to get a dismissal or a nolle pross without a Lawyer.
In Fairfax, and many other jurisdictions, the Prosecutors will not talk to individual defendants. They will only converse with lawyers. If you are in such a jurisdiction, then you really have to have a Possession of Marijuana Lawyer Fairfax County to even ask the Prosecutor to nolle pross the case. Other things a lawyer can do for you is to think of creative alternatives such as asking the Prosecutor to amend the charge to Possession of Paraphernalia (a minor crime compared to Possession of Marijuana) or amend the charge to Trespassing. Trespassing has a similar program to the 18.2-251 Disposition. If you can plead guilty to a Trespassing, the mention of “marijuana” can be expunged, and your record will read, “Charged Trespassing – dismissed.”
Finally, maybe going to trial is the best path. The Possession of Marijuana statute itself says that mere presence of marijuana in a vehicle cannot create a presumption of possession. So, if you did not admit that the Marijuana was yours, and it was in the car and not in your pocket, there is always a valid defense. If that is the case, you can go to trial and try and win the case. Also, this would be a good bargaining chip for your Possession of Marijuana Lawyer Fairfax County. He can explain to the Prosecutor the weakness in the Prosecutor’s case, thus encouraging the Prosecutor to nolle pross the charge or amend it to a lesser charge.
(Note: This article will be outdated on July 1, 2020 when a new law in Virginia takes effect. That law make Possession of small amounts of Marijuana a civil fine of $25. Possession of less than 1 oz is presumed “possession” and thus a civil crime as opposed to possession with the intent to distribute which is still a crime.)
So many states have legalized Marijuana in recent years. While states such as Oregon, Washington, California, Colorado and others have legalized recreational Marijuana, a total of 29 states have legalized it for medical purposes. Thus, some falsely assume that possession of Marijuana in Virginia is o.k. To be clear, Marijuana is NOT legal in Virginia, and if you are charged with Possession of Marijuana, Possession with the Intent to Distribute Marijuana or Distribution of Marijuana, you should seek a Possession of Marijuana lawyer Fairfax VA trusts.
Possession of Marijuana in Virginia is a Class 1 Misdemeanor, which is punishable by up to 12 months in Jail and up to a $2,500 fine. In addition, it causes your license to be suspended for 6 months. It is rare for a first-time offender to get even one second in jail, but a fine of a few hundred dollars is common. The License suspension is mandatory, but most people can get a restricted license for certain purposes such as work, child care, medical care. Now if you are a in an unregulated profession where a criminal record for “Possession of Marijuana” won’t hurt you, it may not be worth hiring an attorney. There is no law that says you have to have an attorney. However, if you don’t want this on your record, and have to get it dismissed, it would be wise to retain a lawyer.
There are three ways to get a Possession of Marijuana dismissed. The most common is through a special program authorized by VA Code §18.2-251. I have included the entire section below. But in summary, if you have never been convicted of a drug possession charge anywhere previously, and have not done this program previously, then you can get the case continued for between 6-mos – 1 year (It depends upon the Judge. Some Judges go long and some do short periods) if you do the following: (i) to successfully complete an alcohol/drug treatment or education program or services, (ii) to remain drug and alcohol free during the period of probation and submit to such tests during that period, (iii) to make reasonable efforts to secure and maintain employment, and (iv) to comply with a plan of up to 24 hours of community service for a misdemeanor. A six-month license suspension is also required. However, recent legislation which has not yet become effective, states that if you do extra community service, you will not have your license suspended. You should consult a Possession of Marijuana Lawyer Fairfax VA to find out if this law has become effective yet. As of the writing of this article, the law had passed, but has not become effective.
- 18.2-251. (Contingent expiration date — See Editor’s note) 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.
Whenever any person who has not previously been convicted of any offense under this article or under any statute of the United States or of any state relating to narcotic drugs, marijuana, or stimulant, depressant, or hallucinogenic drugs, or has not previously had a proceeding against him for violation of such an offense dismissed as provided in this section, pleads guilty to or enters a plea of not guilty to possession of a controlled substance under § 18.2-250 or to possession of marijuana under § 18.2-250.1, the court, upon such plea if the facts found by the court would justify a finding of guilt, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him on probation upon terms and conditions.
As a term or condition, the court shall require the accused to undergo a substance abuse assessment pursuant to § 18.2-251.01 or 19.2-299.2, as appropriate, and enter treatment and/or education program or services, if available, such as, in the opinion of the court, may be best suited to the needs of the accused based upon consideration of the substance abuse assessment. The program or services may be located in the judicial district in which the charge is brought or in any other judicial district as the court may provide. The services shall be provided by (i) a program licensed by the Department of Behavioral Health and Developmental Services, by a similar program which is made available through the Department of Corrections, (ii) a local community-based probation services agency established pursuant to § 9.1-174, or (iii) an ASAP program certified by the Commission on VASAP.
The court shall require the person entering such program under the provisions of this section to pay all or part of the costs of the program, including the costs of the screening, assessment, testing, and treatment, based upon the accused’s ability to pay unless the person is determined by the court to be indigent.
As a condition of probation, the court shall require the accused (i) to successfully complete treatment or education program or services, (ii) to remain drug and alcohol free during the period of probation and submit to such tests during that period as may be necessary and appropriate to determine if the accused is drug and alcohol free, (iii) to make reasonable efforts to secure and maintain employment, and (iv) to comply with a plan of at least 100 hours of community service for a felony and up to 24 hours of community service for a misdemeanor. Such testing shall be conducted by personnel of the supervising probation agency or personnel of any program or agency approved by the supervising probation agency.
The court shall, unless done at arrest, order the accused to report to the original arresting law-enforcement agency to submit to fingerprinting.
Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without adjudication of guilt and is a conviction only for the purposes of applying this section in subsequent proceedings.
Notwithstanding any other provision of this section, whenever a court places an individual on probation upon terms and conditions pursuant to this section, such action shall be treated as a conviction for purposes of §§ 18.2-259.1, 22.1-315, and 46.2-390.1, and the driver’s license forfeiture provisions of those sections shall be imposed. The provisions of this paragraph shall not be applicable to any offense for which a juvenile has had his license suspended or denied pursuant to § 16.1-278.9 for the same offense.
For most people, getting the charge dismissed by §18.2-251 is fine. However, the one thing a lot of lawyers don’t tell their clients is that the Criminal Record will say, “Charged Possession of Marijuana – Dismissed.” And this cannot be expunged (a.k.a. erased.) It remains on your record for the rest of your life. If you want to have the charge expunged/erased, you need to get it dismissed the other two ways.
Getting the Prosecutor to agree to dismiss (“nolle prosequi” which is Latin for “not prosecute”) is one way. But this is difficult. When I was a prosecutor, I did not do it. I would say, “If I do it for you, then I have to do it for everyone… Show me why I may lose, so I can justify dropping the case.” Having been a Prosecutor, I know that Prosecutors need to put in their notes something about why they dismissed a case so that if asked by the boss why they did it, the Prosecutor can respond, “I thought I would lose at trial because XXXX.” An experienced Possession of Marijuana Fairfax VA lawyer knows that a Prosecutor needs an excuse to dismiss a case. So, it is best to come to court prepared with a defense, to show the Prosecutor why he might lose.
If the Prosecutor will not dismiss the case, then there is only one other way to do it – go to trial. After hearing the facts of your case, an experienced Possession of Marijuana Lawyer Fairfax VA will be to identify defenses. Some of the most common defenses are illegal stops by the Police, illegal searches by the Police, a location of the Marijuana that does not prove beyond a reasonable doubt that it belongs to the Defendant (e.g. in a car with multiple people and the Marijuana is in the center console), or faulty laboratory tests.
If you cannot live with a Marijuana conviction, we would be honored to represent you.
