Before the Senate Bill (SB) 1406 and House Bill 2312 took effect on July 1, 2021, legalizing possession of marijuana for personal or recreational use among adults, § 18.2-250.1 criminalized simple possession of marijuana, making it a misdemeanor offense. Today, marijuana simple possession laws have significantly changed, with simple possession among adults becoming a civil infraction that attracts small fines.

Drug crime laws keep changing, and penalties are revised or removed. Virginia is among the states that decriminalized marijuana possession and later legalized it. At Virginia Criminal Attorney, we understand that the state’s marijuana statutes keep changing, hence the need to keep you updated to avoid legal trouble. Besides, we will defend you when you face charges for marijuana possession for a fair verdict in Fairfax and Northern Virginia.

Before July 2020

Before the decriminalization of simple possession of marijuana in July 2020, marijuana possession, even the slightest amount, was chargeable as a misdemeanor for first-time offenders. However, subsequent violations were charged as felonies, depending on circumstances. The Virginia Code § 18.2-250.1 made it a crime to deliberately or knowingly possess even the slightest quantity of marijuana. Nevertheless, the section had an exception for marijuana obtained for medicinal purposes through a valid prescription and from a certified medical practitioner. The law made it unlawful to have in your possession any usable amount of marijuana.

Besides, Va Code § 18.2-248.1:1 made it illegal to control synthetic marijuana, otherwise known as K2. The controlled substance is produced in a lab, unlike marijuana, which is cultivated. Before 2011, K2 was openly sold. Nevertheless, the state banned many of the compounds used in its production.

Simple Possession Elements

Previously, for you to be guilty under § 18.2-250.1, the Commonwealth prosecutor had to demonstrate the following aspects:

The Controlled Substances At Issue Was In Actuality Marijuana

A conviction would not be possible if the prosecutor did not show that the controlled substance was truly marijuana. The person responsible for determining the nature of the controlled substance was the arresting officer, as they were the people making the arrest and gathering evidence. Therefore, the officer conducted a field test where the alleged violation happened to conclude that the narcotic was marijuana. However, the evidence underwent laboratory testing to officially identify it as marijuana.

The prosecutor ordered these tests to confirm the substance’s nature before presenting evidence in court. A laboratory test and analysis were performed, and the test results were submitted to the court. In simple possession, judges rarely asked for test analysis to corroborate the nature of the drug. Besides, as part of your defense, you could request a lab analysis of the substance to challenge the officer's field test assessment of the drug.

You Were Aware of the Substance’s Nature

Under this law, the DA was expected to show that you knew that the drug you controlled was marijuana. Knowing the substance's nature alone was insufficient to secure a guilty verdict. The DA had to demonstrate that you knowingly exercised control over the substance, whether constructive or actual. Actual control or possession means the substance was in your immediate presence, like in your pocket or hands. Actual possession usually acts as primary evidence for simple possession.

Police gather evidence after arrest through interrogation sometimes. If the interrogation happened in the absence of your attorney, you could be intimidated into a confession, and it was used as evidence against you. Luckily, you could contest your previous admission that the drug was marijuana and request the court to order a lab analysis to establish the substance’s nature.

You Had Actual or Constructive Control Over the Marijuana

Possession or control can be actual or constructive. Actual possession means that the controlled substance was within your physical control or immediate person. Usually, if the substance is in your physical control, it is easy to prove you are the owner.

In contrast, constructive possession means the controlled substance was in another location or place, one that you control or have dominion over. It could be in your vehicle or a warehouse you own or operate. Occupying or owning a premises or vehicle where marijuana is stored led to the assumption that you intentionally and willfully possessed the substances.

So, when proving constructive possession, the prosecutor was expected to show the control you exercised was intentional. The DA should show you were aware of where the substances were and their nature. However, proving this was difficult because it was hard to determine the defendant’s state of mind during the offense. Therefore, the prosecutor relied on circumstantial evidence, such as facial expressions registered on the suspect's face, to prove the element. With knowledge being a crucial element, a defense attorney could argue the defendant lacked knowledge or motive to control the substances and, therefore, was innocent.

Prosecutors had a difficult task proving this element in instances where the marijuana was not found in your physical presence, as they were required to demonstrate constructive control. Proving the element under the Commonwealth was challenging, mainly if you had a defense attorney during interrogation and did not make any incriminating statements. This gives your attorney the chance to put doubt in the jury's minds about the possession, preventing a conviction.

For example, you rented a car, but the previous person who had rented it left cannabis in the glove compartment. When you hired the car, you did not check the compartment, making you unaware of the controlled substance’s presence. Even if you were arrested for the offense, the prosecutor could not demonstrate knowledge of the drugs, making you innocent. You could assert that you lacked constructive control or that the prosecutor lacks adequate evidence to prove the possession element beyond moral certainty.

Penalties for Simple Cannabis Possession

Before the decriminalization and subsequent legalization of simple possession of cannabis, § 18.2-250.1 made the offense an unclassified misdemeanor whose conviction attracted severe penalties. The type of charge and penalties imposed under the statute depended on your criminal record.

First-time offenses were charged as misdemeanors punishable as follows:

  • No more than 30 days of jail confinement
  • At most $500 in monetary court fines
  • Both confinement and court fine

A second simple possession charge led to Class 1 misdemeanor penalties, including:

  • No more than twelve months of jail confinement
  • Monetary court fines of at most $2,500
  • Both court fines and jail incarceration

Virginia marijuana statutes categorize hashish oil as concentrated marijuana. Therefore, under the old law, controlling the oil led to immediate driving license deferment and financial court fines of no more than $2,500. Additionally, you risked 12 to 120 months of prison confinement.

Under § 18.2-248.1:1, the punishment for controlling synthetic marijuana or K2, was harsher than that of actual cannabis.  The offense was a class 1 misdemeanor, and first-time convicts faced at most twelve months of jail incarceration. Controlling PWID synthetic cannabis even attracted graver penalties as prosecutors filed the offense as a felony, whose guilty verdict led to at most sixty months of prison confinement. A guilty verdict also attracted six months of driving privilege withdrawal or suspension.

The old statute also did not recognize cannabis to have any medicinal value or use. The only exception was extended to tetrahydrocannabinol (THC) oil, making its possession lawful.

However, currently, § 18.2-251 legalizes the possession and distribution of marijuana for medical use. Possession or distribution of the controlled substance for medical reasons is permitted. However, only licensed dispensaries dispense the marijuana to registered patients.

Deferred Prosecution

Before the decriminalization and later legalization of simple cannabis possession, the court relied on§ 18.2-251 to impose lenient penalties on individuals who violated§ 18.2-250.1 for the first time. The court imposed a deferred prosecution, also called the 251 program, on these individuals, where they could impose conditions defendants were required to comply with for a given duration. Upon completing the probation, the court dropped or dismissed the case. The conditions defendants were required to comply with during the deferred prosecution period were:

  • Refraining from engaging in another violation
  • Mandatory 24 hours of community hours or service
  • Payment of relevant court fines
  • Prohibition from drugs or alcohol, unless it is legally authorized prescription medication
  • Surrendering the driver’s license to the DMV for a six-month suspension
  • Driving on a restricted or limited license to restricted areas like school, court, hospital, or work for the suspension period
  • Drug or alcohol testing during probation
  • Substance abuse evaluation
  • Mandatory enrollment and completion of drug or alcohol treatment if the result from an evaluation recommends treatment.

Not every individual charged with simple cannabis possession was eligible for deferred sentencing. To qualify for the plan:

  • Your offense should not have been drug-related
  • The court must not have dismissed a substance-related offense against you in the past
  • The court has sufficient proof to convict you of the charges
  • You should have admitted to the charges in exchange for a pardon

Note that even if the court imposed the program and you end up with a dismissal, the arrest and charges appeared in your record. It counted as a prior offense and affected subsequent charges and penalties. The records remained accessible to the public; hence, the dismissal had little effect, as employers and lenders could access them. If an individual walked into a courtroom after the completion of the 251 program and demanded the records, they could access them unless you filed for an expungement.

Besides, a violation of the deferred prosecution conditions led to probation revocation and the imposition of the initial penalties for the simple cannabis possession charge. How the court dealt with the probation violation hinged on the severity of the alleged breach and criminal history.

After July 2020

Governor Ralph Northam signed SB 2 and House Bill (HB) 972 in May 2020 to bring many reforms to the criminal justice system.  The changes took effect in July 2020, with some of its recommendations decriminalizing simple cannabis possession.

However, the reforms did not legalize cannabis possession in the state. Instead, the reforms made simple cannabis possession a civil offense punishable by only a court fine of at most $25. Previously, under § 18.2-251, simple cannabis possession was an unclassified misdemeanor whose guilty verdict carried at most 30 days of jail incarceration and $500 in financial court fines for first-time offenders. Second or subsequent offenses were classified as class two misdemeanors carrying one year of jail confinement and court fines of at most $2,500. However, after the reforms, simple possession was decriminalized with no arrest or formal charges but a civil fine of $25.

The July 2020 reforms further reduced the stigmatization associated with the criminal record for simple cannabis possession as a criminal offense. After the reforms took effect, the civil offense could not be included in your criminal history or reported, unlike when a conviction or deferred prosecution appeared on your criminal record, permanently haunting you.

Also, with the reforms, civil citations and sentences for cannabis possession cannot be publicly accessible or revealed to interested parties like potential employers unless by the probation department, law enforcement, sentencing authorities, or screening during job applications for emergency medical personnel.

Furthermore, the reforms barred potential employers, lenders, property managers, or institutions from making it mandatory for applicants to reveal simple cannabis possession charges or convictions that happened after the 2020 reforms.

The reforms also barred courts from imposing court costs on defendants. Again, if the simple possession violation does not involve a driving-related violation, the court cannot impose a driver’s license suspension as part of the penalties.

After the decriminalization, Governor Ralph further ordered research on the legalization of simple cannabis possession to eliminate any penalties on adults who possess cannabis for personal use to place Virginia on the list of the states that had legalized recreational use of cannabis. Until July 2021, when recreational use for adults was legalized, simple possession of the controlled substance remained illegal and attracted a civil fine. However, possession for sale or distribution remained unlawful, and a conviction attracted criminal penalties.

After 2021

The decriminalization of simple cannabis possession in July 2020 opened the door for the legalization of the civil offense in July 2021. On April 7, 2021, the Virginia legislature, the Senate, and the House adopted SB 1406 and HB 2312. The reforms took effect on July 1, 2021, legalizing the recreational use of cannabis for adults 21 or older.

A Breakdown of the July 2021 Reforms

The reforms that took effect in July 2021 made it legal for adults aged 21 or older to control or possess at most an ounce of cannabis for personal use in public or private. Nevertheless, despite private use legalization, the changes allowed property owners or managers to restrict the private use of cannabis in their residences.

The new measures further allow for adult sharing of cannabis if the person you are sharing with is 21 or older, but there is no selling or remuneration involved. The sharing should not include dispensing the marijuana concurrently with a reciprocal transaction. For instance, it is unlawful to gift an adult marijuana or advertise it alongside an offer for the sale of products or services.

The new changes also legalize the cultivation of marijuana for recreational purposes. The law permits adults to grow at most four cannabis plants in their principal residence, but away from public view and with identification tags. The tags must be legible, with the owner’s name, driver’s permit or ID number, and a note indicating the plant is for private use. A single household can only cultivate four plants, regardless of the number of adults living there. The measures require the plants to be hidden to prevent individuals younger than 21 from seeing or accessing them, increasing the risk of abuse.

New Penalties for Simple Cannabis Possession After July 2021

After legalization, possession of an ounce or less of cannabis in your residence or public does not attract any court fines or jail incarceration. Controlling at least one ounce and at most four ounces of cannabis in public for personal use is a civil offense that does not attract any jail time but results in a civil fine of $25.

A first-time conviction for controlling more than four ounces of cannabis in public is a misdemeanor offense that does not carry jail incarceration. However, you must pay a financial court fine of at most $500.  A second or subsequent conviction for the same offense is also chargeable as a misdemeanor but attracts harsher penalties than a first offense. The legal penalties include a half-year of jail confinement and court-imposed fines of at most $1,000.

Cultivation of at most four marijuana plants is legal and, therefore, does not attract any jail time or court fines. However, failure to attach a legible tag to the plants with all the requisite details is a civil offense and carries a fine of $25 but no jail term.

Allowing individuals below 21 to refuse to conceal the plants from public view is also a civil offense carrying $25 in civil fines. Having the plants visible from a public road is also a civil offense with the same fine.

Under the new reforms, it is a civil offense to cultivate over four plants but no more than ten in one household. The punishment for a first violation is $250. Nevertheless, a second violation is a criminal misdemeanor. Even though a conviction for this misdemeanor offense will not lead to jail confinement, the court will impose a monetary court fine of at most $500. A third or subsequent criminal violation is also a misdemeanor but attracts harsher penalties, including at most six months of jail incarceration and fines of at most $1,000.

Cultivating over ten plants but not exceeding 49 is also a misdemeanor whose criminal penalties include at most twelve months of jail confinement and $2,500 in court fines. Cultivating 49 to 100 marijuana plants is a felony punishable by 12 to 60 months of prison confinement and $2,500 in financial court fines.

Growing over 100 marijuana plants attracts 12 to 120 months of prison confinement and maximum financial court fines of $250,000. However, the bench or jury has the discretion to impose a minimum sentence of at most twelve months and court fines not exceeding $2,500.

Legal Defenses for Simple Cannabis Possession

Even when you understand the reforms in simple marijuana possession statutes, a small misunderstanding could result in charges. Luckily, a charge does not make you guilty. The law gives you the chance to defend yourself and prove your innocence.

An attorney can apply several legal defenses depending on your case’s facts. You require the legal assistance and representation of an experienced drug crimes attorney with a proven success rate in cannabis possession cases. These common defenses include:

  • Unlawful search and seizures
  • Lack of constructive possession
  • Violation of chain of custody during arrest and investigations
  • Lack of intent to possess the controlled substance

The 4th Amendment protects you from illegal searches. Therefore, if the police searched your property unlawfully to obtain the evidence used against you or stopped you without probable cause, leading to the search, any evidence obtained is unlawful and inadmissible in court. If a search happened without a valid warrant, inform your attorney about it so that you can use it as a defense. Any search without reasonable cause or probable suspicion is unlawful and should lead to a charge dismissal.

Also, you can claim that the police did not follow procedures when acquiring, transferring, or evaluating the marijuana under consideration. The proof will be inadmissible with a breach of chain of custody, leaving the prosecutor with insufficient evidence. Without the cannabis, the DA has no case and, therefore, will drop the charges.

Find a Competent Drug Crimes Defense Attorney Near Me

Simple possession of marijuana in the Fairfax and Northern Virginia area is a serious misdemeanor. Although the legal penalties can seem lenient, a conviction or deferred prosecution shows up on your criminal record, causing severe collateral ramifications. Therefore, it is essential to understand marijuana laws and the constant reforms to avoid a violation. If you violate the statutes, the state could have difficulty proving all the aspects of the case, giving you a chance to defend yourself and obtain a charge reduction or dismissal.

At Virginia Criminal Attorney, we can protect you against cannabis possession charges for a fair verdict. Contact us at 703-718-5533 for a no-obligation consultation.