Even as we see the governors of other states petitioning the Drug Enforcement Agency to reclassify marijuana as a Schedule II controlled substance, which would allow doctors to prescribe it to patients in the 16 states with medical marijuana statutes on the books without risking federal prosecution; Virginia continues to be as aggressive as ever in the prosecution of simple possession of marijuana. Virginia is one of the most conservative states in the nation, so it's likely that the growing national trend toward decriminalizing (and perhaps even legalizing) marijuana will be felt here well after the majority of states have adopted more progressive approaches to marijuana.
That's the bad news for those of you in Virginia who use marijuana. The good news is that possession cases are often difficult for the Commonwealth's Attorney to prove. There are countless avenues of attack for an aggressive criminal defense attorney in dealing with these charges. First and foremost, "possession" is actually fairly hard prove. Just reading the statute, you can see that mere ownership presence in a residence or vehicle wherein marijuana is discovered does not create any presumption of possession. Individuals borrow vehicles, and even borrow clothing that belongs to others, so there are countless reasonable explanations for the presence of marijuana in one's vicinity. The Commonwealth will usually have to rely upon statements by the defendant in these types of cases to establish possession. The issue then becomes whether the individual was entitled to a Miranda rights advisement, and if so, whether such an advisement was given. This is a complicated legal question that goes far beyond a simple determination of whether the individual was under arrest.
Another challenge for the prosecution is proving whether the substance was in fact marijuana. While there is a statute that authorizes testimony of field testing by any law enforcement officer to determine the chemical makeup of marijuana, field testing is frequently not done. Where this testing is not done, the sample must be packaged and sent to the Department of Forensic Science in Richmond for chemical testing. There are countless ways to attack the handling, mailing, testing, and reporting of these results. Many inexperienced lawyers will simply concede that the plant substance is marijuana, thereby foreclosing one of the critical avenues of defense. Don't let this happen to you!
The bottom line is that Virginia will continue to prosecute and lock people up for smoking marijuana, long after more progressive states have seen fit to treat marijuana as a medical issue. In the meantime, if you are charged with possession of marijuana in Virginia, you must contact an aggressive and experienced criminal defense attorney. Do not accept that your future has to be ruined by this charge! Call us today!