Possession of marijuana in Virginia is punished with jail time, fines, and driver’s license suspension. Additionally, a conviction for a possession of marijuana charge in Virginia could have immigration consequences for anyone who is not a United States citizen.
Virginia Code §18.2-250.1 makes it illegal for any person to “knowingly or intentionally” possess marijuana. There is an exception to this offense for possession of marijuana pursuant to a valid prescription issued by a medical doctor in the course of his professional practice for treatment of glaucoma or cancer (Va. Code §18.2-251.1(A)).
Possession of less than one-half ounce of marijuana is considered simple possession, or possession for one’s own personal use. Possession of more than one-half ounce of marijuana is usually charged as possession of marijuana with intent to distribute. (For more information on possession with intent to distribute marijuana charges in Virginia, click here.)
Proof of Possession of Marijuana in Virginia
In order to convict an offender of possession of marijuana in Virginia, the Commonwealth must prove possession and that the substance was marijuana.
Knowing and Intentional Possession: The Commonwealth needs to prove that the offender “knowingly and intentionally” possessed marijuana. Knowledge refers to the offender’s knowledge of the fact that what he was possessing was illegal. It also refers to knowing that the marijuana was present. Intentional refers to asserting dominion and control over the substance. Knowing and intentional possession of marijuana in Virginia means the offender knew the illegal character of the substance, knew where it was, and asserted dominion and control over it.
Actual or Constructive Possession: Possession of marijuana in Virginia can be actual or constructive. Actual possession means that the marijuana was found on the defendant’s person (in his hand, pocket, etc.) Constructive possession means that the marijuana was found in close proximity to the offender. Proximity by itself is not enough for a conviction unless the Commonwealth can prove that the offender knew what and where the substance was and exercised dominion and control over it. This can be proven with circumstantial evidence or by the offender’s statements to the police.
Joint Possession: It is also possible for more than one person to be convicted of possession of the same marijuana. The Commonwealth must prove that both offenders knowingly and intentionally possessed marijuana. If both people knew what the substance was, knew where it was located, and asserted dominion and control over it, the Commonwealth can prove joint possession and convict multiple offenders of possession of marijuana in Virginia.
Proof that the Substance was Marijuana
The Commonwealth must also prove that the substance found was, in fact, marijuana. This is usually done by tests conducted in the field and more extensive testing in a lab. For the purposes of possession of marijuana under Va. Code §18.2-250.1, marijuana is defined in Va. Code §18.2-247(D). The statute states: “The term ‘marijuana’ when used in this article means any part of a plant of the genus Cannabis, whether growing or not, its seeds or resin; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or its resin.”
The amount of marijuana is irrelevant in a possession of marijuana prosecution in Virginia. Any marijuana at all, even the smallest amount, is enough to convict an offender of possession of marijuana in Virginia.
Penalties for Possession of Marijuana in Virginia
Convictions for possession of marijuana in Virginia are punished with jail time and fines. Additionally, Va. Code §18.2-259.1 requires the automatic driver’s license suspension for 6 months of anyone convicted of this offense.
- First Offense Possession of Marijuana in Virginia: A first offense possession of marijuana charge in Virginia under Va. Code §18.2-250.1 is punished with up to 30 days in jail, a fine up to $500, and automatic driver’s license suspension for 6 months. Click here for more information on first offense possession of marijuana charges in Virginia.
- Second Offense Possession of Marijuana in Virginia: Second and subsequent marijuana possession charges in Virginia under Va. Code §18.2-250.1 are Class 1 misdemeanors. They are punished with up to 12 months in jail, a fine up to $2500, and driver’s license suspension for 6 months. Click here for more information on second offense possession of marijuana charges in Virginia.
- Possession of Marijuana by Prisoner: Possession of marijuana by a prisoner in Virginia is a Class 5 felony under Va. Code §53.1-203.6. It is punished with up to 5 years in prison and a fine up to $2500.
First Offender Program
Va. Code §18.2-251 allows for the dismissal of a first offense charge of possession of marijuana in Virginia if the offender completes supervised probation. This probation includes a substance abuse evaluation, drug treatment, classes, random drug and alcohol screenings, community service, and driver’s license suspension for 6 months. If the offender successfully completes the program, the charge will be dismissed and he will not have a drug conviction. However, the marijuana possession charge can never be expunged. Additionally, the offender will be prohibited from taking advantage of this first offender program again in the future. If the offender fails to successfully complete the program, the judge will find him guilty and impose a sentence, and he will never be able to participate in the first offender program again.