Frequently Asked Questions

Drug Offenses in Virginia

Q. What is the penalty for first offense possession of marijuana in Virginia?

A. The maximum penalty is thirty days in jail and a fine of no more than $500. As a practical matter, incarceration is rarely imposed. The most onerous aspect of a first offense marijuana conviction for many people is the automatic drivers license suspension which accompanies a marijuana conviction. The Virginia General Assembly has enacted a statute requiring that anyone convicted of a marijuana offense lose their drivers license for six months. The judge does not have the authority to suspend this portion of the sentence. Even if you have an out of state drivers license, your privilege to operate a motor vehicle in Virginia will be suspended for six months, and this suspension will in all likelihood be reported to your home state’s Department of Motor Vehicles. Many states will automatically suspend your drivers license if your privilege to operate a motor vehicle has been suspended by another state.

Q. How can I avoid having my license suspended for a marijuana conviction?

A. This can only be accomplished through plea negotiations between your lawyer and the prosecutor. Some prosecutors will agree to amend a first offense marijuana charge to possession of drug paraphernalia which does not carry a mandatory license suspension provision. This is done most commonly in cases where the defendant has no prior record, was in possession of only a small quantity of marijuana, and did not give the police officer a bad attitude when arrested. This type of plea agreement should by no means be taken for granted. In most jurisdictions it is entirely discretionary with the prosecutor.

Q. The police found marijuana in my car but it didn’t belong to me. Can I still be convicted?

A. Possibly. The fact that drugs are found in your car by itself is not sufficient to convict you of possession. However, if you admitted to the officer that you knew the marijuana was in the car, even if you told him that it belonged to someone else, then this statement will be admissible against you and is sufficient to convict you. This is so because the law of possession of contraband is not the same as ownership. If the police find one joint in a car with four passengers each of whom admit to knowing that the joint was there then all four passengers can be convicted of possession regardless of who actually bought and paid for the joint.

If the police find contraband in the car you have been driving or riding in as a passenger, you should not make any statements to the police regarding the contraband. Don’t even say that it belonged to someone else. The bare knowledge of the presence of marijuana which is in close proximity to you is often enough evidence to convict.

Q. What should I say to a police officer who has confronted me about marijuana or other contraband?

A. Nothing. This is the time to invoke your right to remain silent. If the officer persists in asking you questions, you should ask the officer if you are free to leave. If he says yes, then leave. If he says no then the next words out of your mouth should be "I want a lawyer." Once you invoke your right to counsel the officer cannot legally question you further.

It is worth mentioning at this juncture that there is a huge difference between not saying anything and lying to the officer. For some reason, many people have trouble making this distinction. Do not lie to the police. This is a crime punishable by twelve months in jail. If the truth will not set you free, then say nothing. It is your right.

Q. Is there a minimum amount required to convict someone for possession of drugs?

A. No. In Virginia even possession of trace amounts of marijuana and other drugs is sufficient for a conviction. This also includes the residue left on a smoking device. Any amount of contraband drugs which can be detected by laboratory analysis can be used as a basis for criminal prosecution.

Q. May marijuana be used for medical treatment in Virginia?

A. Yes, although the Virginia General Assembly has severely restricted the "medical necessity" defense such that it only applies to individuals suffering from cancer or glaucoma and who are using marijuana pursuant to a valid prescription issued by a medical doctor.

Q. How much marijuana is necessary to prove "intent to distribute" in Virginia?

A. Technically there is no specific limit on quantity which divides simple possession and possession with intent to distribute marijuana. If you pass a joint to the person sitting next to you, you can legally be charged with distribution of marijuana. There are differences however in the penalties for distribution of specific amounts of marijuana. For example, distribution of less than half an ounce of marijuana is a misdemeanor punishable by a maximum of twelve months in jail. Distribution of between one half ounce and five pounds of marijuana is a felony punishable by a maximum of ten years imprisonment. Distribution of more than five pounds of marijuana is a felony punishable by a maximum of thirty years imprisonment.

Q. What are the penalties in Virginia for possession and distribution of other Schedule I and II drugs?

A. The mere possession of even trace amounts of Schedule I and II drugs, including cocaine and heroin, is a felony punishable by a maximum term of imprisonment of ten years. Distribution of these substances is a felony punishable by a maximum term of imprisonment of forty years. Anyone charged with a felony drug offense in Virginia should immediately consult an attorney for appropriate advice specific to their case.

Q. Some friends that I party with have received grand jury subpoenas. What should I do?

A. Get a lawyer immediately. You may be the target of a federal or multi-jurisdictional grand jury. This is very serious business.

Feel free to contact me at inquiry@brianjgrossman.com.