I am charged with possession of marijuana in Virginia. What are the possible consequences? Can I avoid a conviction if it is my first offense?
November 6th, 2014
In Virginia, possession of marijuana is a criminal offense. It is often referred to as “simple possession” to distinguish it from more serious felony drug charges, such as Possession with Intent to Distribute (PWID). Possession of marijuana is a criminal misdemeanor, and the consequences are wide-ranging and can be harsh.
The potential consequences for possession of marijuana depend on whether it is a first offense or a second (or subsequent) offense. For both first offenses and subsequent offenses, the penalties are similar in kind, and only different by degree. Either way, the defendant will face the possibility of a combination of penalties: jail; monetary fines; driver’s license suspension; restrictions of the right to keep and bear arms; other collateral consequences.
For a first offense of possession of marijuana, the maximum jail sentence that may be imposed is thirty (30) days in jail.
For a second or subsequent offense, the maximum jail sentence that may be imposed is twelve (12) months in jail.
In some cases, it may be possible to limit a sentence to “suspended jail time,” rather than “active jail time.” Also, it may be possible to serve any active jail time so as not to interfere with employment or other obligations (e.g., weekend jail time, weekend work force, delayed reporting, etc.).
For a first offense of possession of marijuana, the maximum monetary fine that may be imposed is $500.
For a second or subsequent offense, the maximum monetary fine that may be imposed is $2,500.
Suspension of Driver’s License:
For both first offenses and second / subsequent offenses of possession of marijuana, the court is required to suspend the defendant’s driver’s license for six (6) months. This requirement is unavoidable, but it may be mitigated.
For some individuals, it may be possible to request a restricted driver’s license. A restricted driver’s license may allow the individual to drive for very specific, essential purposes (e.g., to/from work, to/from school, etc.).
In addition to the direct penalties described above, a conviction of possession of marijuana may have indirect consequences.
First, the individual will likely be affected by a criminal conviction on their criminal record. Very often, employers will require job applicants to disclose prior criminal convictions. Some employers even require fingerprints and a criminal background check as part of an application. A prior criminal conviction may seriously complicate one’s ability to find and maintain employment, whether it is a part-time job, military enlistment, or full-time skilled labor.
Second, a conviction of possession of marijuana will directly impact an individual’s right to keep and bear arms. The Commonwealth of Virginia has a strong culture of responsible firearms ownership, and Virginia law protects and encourages the right of each individual to keep and bear arms. Virginia law also restricts the right to keep and bear arms when an individual is convicted of certain crimes. Possession of marijuana is one of those crimes.
A conviction of possession of marijuana serves as an automatic 3-year disability for a Concealed Handgun Permit (CHP). Virginia is a “shall issue” jurisdiction for Concealed Handgun Permits. “Shall issue” means that, as long as the applicant meets all of the statutory qualifications, the court is required – without discretion – to issue the permit to carry a concealed handgun. However, one of the statutory disqualifications is a conviction (or first offender dismissal) of possession of marijuana. The disqualification is for three (3) years. So, after a conviction for possession of marijuana, the individual must wait three (3) years before re-applying for a CHP. The same holds true for someone who already holds a Concealed Handgun Permit. The permit will be revoked, and the individual will be disqualified for three (3) years. (See Virginia Code §18.2-308.09.)
A much more severe disability occurs with two offenses of possession of controlled substances. If a person is convicted of two misdemeanor drug charges within a 36-month period (i.e., two convictions within 3 years), they are completely prohibited from purchasing or transporting a handgun for at least five (5) years after the most recent conviction. (Note: this particular penalty may be difficult to understand. See Virginia Code §18.2-308.1:5 for the full statute.)
First Offender Program:
For a first offense of possession of marijuana, the court has discretion to allow the defendant to complete a “First Offender” program. If the defendant completes all of the requirements, the charge will be dismissed, and the defendant can avoid a criminal conviction.
Generally speaking, in order to qualify, the defendant must have never been convicted of any other drug charges, in any state. This includes any prior “first offender dismissals” or similar programs in other states.
For the first offender program, the court will defer the case for a defined period of “probation,” during which the defendant must satisfy several conditions. Usually, the defendant must perform community service, attend a substance abuse assessment and treatment program, and must comply with instructions from the probation office. During the deferral, the defendant must not incur any new criminal charges. The defendant must stay free of drugs and alcohol, and the defendant must submit to random screenings to test for drug and alcohol consumption. The court has the discretion to impose additional conditions as it sees fit.
The end of the first offender program is usually called the “return date” or the “review date.” On the return date, if the defendant has complied with all of the court’s conditions, the charge will dismissed. If the defendant violates any of the conditions or fails to complete the requirements, the court may find the defendant guilty and enter a conviction.
Importantly, the first offender program is not guaranteed. It is up the court to decide whether to allow the defendant to enter the program.
If you have been charged with possession of marijuana or any other criminal charge, please contact my office for a free consultation.
There are several different legal strategies to consider to defend against criminal charges. Each case is different, and it may be possible to avoid a conviction. Additionally, I can explain what options may be available to lessen the potential consequences.
Do not assume that you can handle the charge on your own!!! At the very least, I can evaluate your case and help you understand all of your options. You have nothing to lose by calling.
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