Possession of any amount of marijuana is a serious offense in Virginia, and a conviction may be a misdemeanor offense that will cause you to have a permanent criminal record. While friends and family may advise you to just plead guilty and enter into Virginia’s First Offender Program, this may not be in your best interests. The Commonwealth of Virginia may not be able to prove its case against you or you may have defenses to the charge. If that is the case, the charge may be dismissed or amended to a different or less serious offense.
What Does the Prosecutor Need to Prove to Meet the Commonwealth’s Burden of Proof That You Are Guilty?
Under Virginia Code § 18.2-250.1, it is illegal to “knowingly or intentionally” possess any amount of marijuana. For you to be convicted, the state of Virginia must prove your possession of marijuana. Here is what must be proven in more detail:
- Knowing and intentional possession. The prosecutor must prove that you had knowledge of the fact that the substance you possessed was illegal and that marijuana was present. He must also establish that you intentionally possessed the marijuana, which means that you had control of it.
- Actual or constructive possession. Your possession of the marijuana can be actual or constructive. Actual possession means that the marijuana was found in your possession, such as in a pocket or in your hand. Constructive possession refers to the situation where the marijuana was found in close proximity to you, such as in your vehicle. However, with constructive possession, the prosecutor must also prove that you knew what and where the substance was and that you exercised control over it. You do not have to own the marijuana to be in possession of it. Circumstantial evidence and your statements to the police are some of the ways that this can be shown.
- Joint possession. More than one person can be charged with possession of the same marijuana if the elements of the crime can be proven.
Defenses to Possession of Marijuana Charges
There may be a number of defenses to the possession of marijuana charges that you face, and the precise ones that apply to your situation will depend on the facts surrounding your arrest. You will need the assistance of an experienced criminal defense attorney to determine the defenses that will work best in your case. Common defenses in these cases include:
- Illegal search and seizure. The Fourth Amendment protects you against illegal searches and seizures of yourself, your home, and your property. It is important to talk to your attorney about whether any search was valid. If a search was performed illegally, the charges may be dismissed.
- No constructive possession. If the police did not find the marijuana in your possession, the prosecutor will need to prove your constructive possession of it. This can be hard for the Commonwealth to prove if you did not make any incriminating statements. For example, if you rented a vehicle and the person who rented it before you left marijuana in the glove compartment, you may not have known that the marijuana was there or exercised control over it. Similarly, someone visiting your home may have left marijuana there without your knowledge. In these situations and many others, you may be able to argue that you were not in constructive possession of the marijuana or that the prosecutor does not have enough proof of this to win his case.
- Chain of custody. Chain of custody refers to the proper procedures that must be used by the police to obtain, transfer, analyze, and store the marijuana that the police found in your possession. If the chain of custody is broken, the marijuana may not be used as evidence against you. Even if you know you are guilty, problems with the chain of custody may result in the Commonwealth being unable to prove their case against you and the charges being dropped.
Are you facing marijuana possession charges in Virginia? Our experienced criminal defense attorneys have years of experience aggressively defending our clients facing these charges. To learn about the possible defenses in your case and how we can help, call our Fairfax office today to schedule a free consultation.