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First Offender for Marijuana

 

While marijuana is seeing a renaissance of sorts in other States, the simple possession of the controversial weed is still a misdemeanor offense in the Old Dominion.  Unlike Colorado and Washington State which have recently decriminalized possession and recreation use of the plant, Virginia has rigidly stayed the line. 

 

A first offense for simple possession of the substance is punishable by up to thirty days in jail and a $500 fine as well as a six month suspension of your driver’s license, even if you were nowhere near your vehicle at the time of the offense.  A second or subsequent offense ups the ante and is a Class 1 misdemeanor. In addition to the six month driver’s license suspension, a second offense is punishable by up to 12 months in jail and $2500 fine.  Distribution of marijuana is highly frowned upon in Virginia.  Distribution of a half ounce or less is a Class 1 misdemeanor, which in an extreme case could include simply passing a joint.  Distribution of
more than a half ounce is a Class 5 felony!  As a Class 5 felony, distributing more than a half ounce can land you in prison for 1 to 10 years.  Distribution of more the five pounds in Virginia can result in a prison sentence between 5 to 30 years.  Such a sentence can seem particularly harsh considering the substance is now considered legal by two States.

 

Fortunately for the recreational user or the innocent possessor, Virginia still imposes a fairly high burden upon the prosecutor to prove constructive possession.  Unfortunately for the majority who are unaware of the standard, many people incriminate themselves during any search for the plant in an attempt to be cooperative with police. 

 

In Virginia mere ownership or occupancy of the vehicle or premises where the marijuana is found does not create a presumption of guilt.  It is simply a factor for the court to consider, which means that if an officer discovers marijuana during a search of your vehicle or home and nothing else, you have a good chance of getting the charges dismissed.  On the other hand, if you assist the officer by informing him where the marijuana can be found or otherwise admit to knowledge of its whereabouts, it’s an open and shut case for the officer.  The cooperation
requested by an officer during a search rarely benefits the defendant and more than likely simply insures a later conviction. 

 

Now for the multitude of marijuana users who did not even look at the penalties or understand the burden of proof before incriminating themselves, there is still a possible alternative to conviction for a first offense possession charge.  If a person has not been convicted previously of any drug offense and is willing to attend a first offender program under a probationary status the court may allow them to complete such a program as a means to have the charges dismissed. The program will require the defendant to undergo a substance abuse assessment, perform community service and attend a substance abuse program for a period of time as well as submit to random drug screens and adequately complete any other conditions required by the court before earning such a dismissal.  The downside to the first offender program however is that failure has a real possibility of resulting in jail time being imposed at sentencing.  The court rarely rewards a defendant for trying but failing to complete the program and is more
likely to view the failed attempt as a flagrant disregard of the court’s imposed conditions. 

 

As always the best defense is a good offense, meaning don’t break the law in the first place, however if you find yourself charged with any crime your first step should be a consultation with an experienced attorney.     

Charged with marijuana in Virginia?

 
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? 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 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. Jail: 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.). Monetary Fines: 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.). Collateral Consequences: 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 deferred probation 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 our 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, we 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, we can evaluate your case and help you understand all of your options. You have nothing to lose by calling. Contact our office for a free consultation. During the consultation, we will evaluate your case and discuss all of your options. To set up a free consultation today, call (757) 301-3636, or call toll free (877) 214-9640.

Domestic Violence

 

One of the more gut wrenching issues to come across any defense attorney’s desk is domestic violence. Simple Assault and Battery is an offense that is usually handled in the General District
Court; however when the alleged victim is a family member of the accused,
Virginia has a special court to deal with such issues, the Juvenile and
Domestic Relations Court.  As a sister court to the General District Court, the Juvenile and Domestic Relations Court provides for a more private and less formal setting to better deal with domestic violence. The Domestic Relations Court is not only empowered to punish the
guilty but also has mechanisms to rehabilitate in order to keep families intact
if possible. 

While a conviction and jail sentence may suffice when the victim of an assault and
battery is unrelated to the accused, when the parties live under the same roof and
rely upon each other for support, the alternatives to punishment offered by the
Domestic Relations Court may provide for a better resolution for such conflicts
of interest.  As with any criminal charge the accused is considered innocent until proven guilty and the Domestic Relations Court is equipped to handle such matters with a bench trial in front
of a judge; however, as an alternative an accused may be allowed to forego a
trial or otherwise avoid a conviction by seeking rehabilitation as a first
offender.  As an alternative to conviction, the first offender program may provide for a means to retain security clearances and employment, or otherwise keep an accused out of jail in
order to better provide for the overall needs of his or her family.

If an accused has not been convicted of domestic violence in the past, he or she may
be allowed an opportunity to complete the first offender program.  If the court believes an accused qualifies and would benefit from such alternatives to conviction, the court will continue
the trial to allow him or her to complete the program while remaining on good
behavior.  Once successfully completed, the court will dismiss the assault and battery charge and lift any restrictions imposed on the accused by the court.  However,
as the name implies an accused will only be allowed to attend the first offender
program once, so repeat offenders cannot avoid conviction a second time through
the program.  Additionally, a dismissal through the first offender program has real world consequences and may remain on your criminal record, may not be expunged and may impact your ability to qualify for a concealed carry permit so retaining an attorney is the always the
best means to protect your rights whenever facing criminal charges.    

 

Bryan Harrison

Attorney At Law    

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