First-Time Possession of Marijuana? Know Your Options

By Daniel J. Martin, Esq.

Despite changing attitudes across the nation, possession of marijuana remains a serious offense in Virginia. Under Virginia Code § 18.2-250.1, it is “unlawful for any person knowingly or intentionally to possess marijuana,” subject to limited exceptions. A conviction for marijuana possession is a misdemeanor, and can result in either or both of a 30 day jail sentence and a $500 fine. Even worse, upon a second or subsequent conviction, possession of marijuana becomes a Class 1 Misdemeanor, which can result in a punishment more severe: up to 12 months in jail, a fine of up to $2,500, or both. 

Virginia lawmakers, however, have recognized the harshness of these consequences for simple possession of marijuana. That is why, under Virginia Code § 18.2-251, those charged with marijuana possession who have not been previous convicted of any drug offense under state or federal law are eligible to be placed on probation and undergo substance abuse assessment and treatment, avoiding conviction and having their charges dismissed. How does this all work? Continue reading for an overview of Virginia Code § 18.2-251: 

Eligibility. The defendant must be charged with possession of a controlled substance (Virginia Code § 18.2-250) or marijuana (Virginia Code § 18.2-250.1), without having been convicted of any offense, state or federal, “relating to narcotic drugs, marijuana, or stimulant, depressant, or hallucinogenic drugs.” 

Court’s Discretion. The defendant must plead guilty or have been found guilty by the court after pleading not guilty. Then, the court—in its discretion—may defer further proceedings and place the defendant on probation, with terms and conditions. That’s right: unfortunately, a first-time drug offender is not entitled as a matter of right to receive the benefits of Virginia Code § 18.2-251. Montalvo v. Commonwealth, 27 Va. App. 95, 99, 497 S.E.2d 519, 521 (1998). However, if the defendant reaches a plea agreement with the Commonwealth’s Attorney that references the Virginia Code § 18.2-251 program, the court must enforce it. Calvillo v. Commonwealth, 19 Va. App. 433, 435, 452 S.E.2d 363, 364 (1994). 

Probation Terms and Conditions.  Probation is usually subject to a number of terms and conditions, and probation under Virginia Code § 18.2-251 is no different:

·         First, the defendant must undergo substance abuse assessment.

·         Second, the defendant must enter and complete a treatment and/or education program or services, if available; the treatment program will be based upon the results of the substance abuse assessment. The program must be a program (1) licensed by the Virginia Department of Behavioral Health and Developmental Services or a similar program made available through the Virginia Department of Corrections; (2) provided by a local community-based probation services agency; or (3) certified by the Commission on Virginia Alcohol Safety Action Program. The defendant must pay the costs of both screening (assessment) and the program, however, unless the defendant is indigent.

·         Third, the defendant must remain drug and alcohol free during the probation period, and submit to any drug/alcohol tests as the court deems fit.

·         Fourth, the defendant, if not employed, must make “reasonable efforts” to secure and maintain employment.·         Fifth, the defendant must complete up to 24 hours of community service (for felony, i.e., non-marijuana offenses, the defendant must complete at least 100 hours). However, if the court does not suspend or revoke the defendant’s license (more on that below), 50 hours are added to the community service requirement for marijuana possession. 

Suspended or Revoked License. Prior to 2017, being placed on probation under Virginia Code § 18.2-251 was treated as a conviction for the purposes of Virginia’s driver's license forfeiture laws related to drug offenses. This meant that the driver’s licenses of defendants placed on probation were required to be suspended for six months. However, with respect to marijuana possession, the rules have changed. Now, if the defendant is placed on probation for a first‑time marijuana offense, their driver’s license may be suspended only if (1) the court imposes it as a condition of probation or (2) the offense was committed while the defendant was in operation of a motor vehicle. Thus, first-time possession of marijuana offenders may be spared from having their license suspended for six months. 

Outcome. If the defendant violates the terms and conditions of probation—for example, by using drugs—the court may simply declare the defendant guilty and proceed as normal. But if the defendant successfully fulfills the terms and conditions of probation, the court must discharge the defendant and dismiss the proceedings. Importantly, this is done without an adjudication of guilt; in other words, it is as if the defendant did nothing at all. (One caveat: the dismissal is a conviction for the purposes of applying Virginia Code § 18.2-251 in subsequent proceedings. That means defendants can only have their possession charge dismissed once under this section.) 

In conclusion, under Virginia Code § 18.2-251, people charged for the first-time with possession with marijuana can not only avoid jail, but avoid a conviction on their record. Furthermore, with the changes implemented in 2017, first-time possessors can avoid having their driver’s licenses suspended, which in a vehicle-dependent society can have lasting and damaging consequences. Thus, if you have been charged with possession of marijuana for the first time, consider that Virginia Code § 18.2-251 may give you a significant alternative to simply pleading guilty or not guilty. And now, you know your options. 

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