Slow down, Virginia, marijuana isn’t legal here yet!
August 29 2014
Although many states have taken the leap and legalized marijuana, it’s still illegal in the Commonwealth of Virginia. Unfortunately for many of our clients, the laws against owning, possessing, manufacturing, distributing, and selling marijuana are not only in effect, but rigorously enforced. The range of penalties for breaking Virginia’s marijuana laws range from fines and community service to months and years in jail.
If you are found in possession of less than a 1/2 an ounce of marijuana, that is considered ‘simple possession’ in the Commonwealth. It’s punishable by fines, loss of license, and up to 30 days in jail on a first offense and up to 12 months in jail on a second offense.
If you are found in possession of more than a 1/2 an ounce of marijuana, or possess your marijuana in such a way as to make law enforcement believe you intend to sell or distribute it, you can be charged with a felony. Felony possession of marijuana of more than one half ounce but not more than 5 pounds is punishable by fines, loss of license, and up to 10 years in jail. Someone found to be in possession of more than five pounds of marijuana is facing a felony punishable by imprisonment of not less than five nor more than 30 years.
The punishments for any marijuana offense typically increase with each subsequent conviction.
Notably, the marijuana possession laws in Virginia allow you to possess the drug if you have a valid prescription. The key word in the statute is “valid.” Although many states allow citizens to obtain prescriptions for marijuana, which then in turn allow them to legally possess marijuana in that state, usually the prescriptions specifically say that they are not valid outside of whichever state it was issued in.
For those charged with possession of marijuana for the first time, they may be able to take advantage of one of Virginia’s first offenders programs. These programs typically require participants to take random drug screens, complete substance abuse classes and community service, as well as other tasks. Successful completion of the program can result in significant reductions in sentencing and may even lead to ultimate dismissal of the original charge. The programs and their applicability vary from court to court, but are aimed at helping first time offenders recognize whether or not they have an addiction to narcotics and, if so, begin treating that addiction. Clients of ours who have taken advantage of the first offender programs have reported that the information they received in the program helped them to realize their addiction and start making significant strides towards sobriety.
With so many serious consequences, it pays to know how police can charge you with marijuana possession and related offenses. If you are traveling the highways of the Commonwealth, it is surprisingly easy for a routine traffic stop to turn into a full scale search of your person and car. Under current Virginia law, if a police officer has pulled you over for a legitimate traffic offense and, during the course of the stop, smells what he thinks might be marijuana, the officer has a right to search you, your car, and most of your belongings inside the car. This is true even if they have only pulled you over for a relatively minor infraction. We have encountered many serious drug possession cases that started with the client being pulled over for anything from speeding to a malfunctioning brake light.
The laws for searching you, your belongings, and your home when police officers smell marijuana are substantially similar to the rules that apply during traffic stops. The particularly harmful part of these laws is that regardless of whether police actually find marijuana, you can still be charged and held criminally responsible for whatever they find during the search. It is not uncommon for a police officer to think he smells marijuana, conduct a search, and find something other than what he thought he smelled. So long as he can convince the court that he originally smelled marijuana, the results of the search will likely be admissible in court.
It is important to remember, though, that even with the standard for searches based on the odor of marijuana being as low as they are, you still have rights. If a police officer is asking for your permission to search you or your car, you ALWAYS have the right to deny him that permission. This is a right that you shouldn’t be afraid to exercise, and always should exercise, no matter what’s in your car, pockets, or elsewhere. By agreeing to a search, you make it much easier for police to invade your privacy, and you likely also eliminate several good defenses to any criminal charges that might result from a search. Believe me, if the officer thinks he has the right to search you, he’ll search you whether or not you give consent. We always tell our client that if a police officer asks, instead of simply searching, it’s because they don’t have the authority to search you. Be polite but firm in denying him permission to conduct the search. FYI–Your refusal to let officers search you can’t be used against you!
Another right you always have–and should always use–is the right to remain silent. If officers do search you and/or your car and ultimately find something illegal, you do NOT have to tell the police ANYTHING. Anything you say at that point can and will be used against you. The best course of action in this kind of situation is to keep quiet and ask for a lawyer. Usually, once officers suspect you of a crime, there isn’t anything you can say or do to convince them otherwise. So be quiet and ask for a lawyer.
Obviously the best defense to marijuana possession (or any other crime) is to follow the laws. However, if you (or a loved one) do find yourself in the wrong seat of a police car or holding a court summons, remember your rights and then give us a call here at the Law Offices of Sara M. Gaborik. We will be happy to discuss your case and our services with you.