Fairfax Possession of Marijuana Attorney

Justin Ervin is an experienced marijuana defense attorney, providing top-quality defense throughout Fairfax, Arlington, Loudoun, Alexandria, and Stafford.

Call us today: (703) 962-7790

Fairfax Possession of Marijuana Attorney

Possession of marijuana charges are among the most common criminal charges in Virginia, and it takes an experienced attorney to properly advise you on the best course of action for any cannabis charges that you are facing.  Many attorneys will just jump to a 251 diversion pleading or convince you to settle for a plea to a lesser charge, and sometimes these may be the best options.  But the conversation should not start there.  At Ervin Kibria, we examine your case from the beginning to the end to determine whether your rights were properly respected, whether there are potentially any grounds for suppressing evidence, or whether the evidence even exists to prove your guilty.

Fairfax marijuana possession

Fairfax Marijuana Possession

Don’t Feel Pressured to Plead!

For first offenders, a 251 diversion pleading may not sound like a bad option.  And, in many cases, it’s not.  But don’t settle for that right out of the gates.  Have your case examined by experienced marijuana defense attorneys first to determine whether a diversion pleading is the proper course of action.  It’s always better to have a nolle prosequi or not guilty on your record than a dismissed due to 251 diversion pleading.

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  • drug possession defense

Justin Ervin, Esq.

Principal Attorney

Lawyer specializing in DUI and criminal defense throughout Northern Virginia.


Experienced Marijuana Defense Throughout Northern Virginia

Possession of Marijuana Charges

Possession of Marijuana is illegal in Virginia pursuant to VA Code 18.2-250.1.  Under the statute, possession must be proven to have been “knowing” or “intentional.”  This requirement is one of the first aspects of your case that we will directly address at Ervin Kibria.  These possession requirements mean that the government must prove that you either knew about the marijuana or that you intended to have marijuana in your possession, and that it wasn’t unintentional.  Sometimes, this can be significant burden for the prosecution.  The prosecution must prove beyond a reasonable doubt that the defendant was (1) aware of the presence and (2) character of the drug, and (3) that the defendant possessed it.  This issue of “possession” is critical – mere presence near or in the proximity of marijuana is not enough to establish a person’s possession of the drug.

Often times, the prosecution is forced to resort to “constructive possession” of the marijuana.  In a constructive possession argument, the prosecution will offer circumstantial evidence concerning acts, statements, or conduct of the defendant that could lead the judge or jury to believe that the defendant was both aware of the presence of the marijuana and experience dominion over it.  However, having an experienced marijuana defense attorney can make it very difficult for the prosecution to prove that the defendant possessed – actually or constructively – the marijuana.

Penalties For a First Offense of Possession of Marijuana:

  • Misdemeanor conviction
  • Up to 30 days in jail
  • $500 fine
  • 6 months lost of driver’s license (even if you were not driving at the time of your arrest).

Possession with Intent to Distribute (PWID)

Possession of marijuana with the intent to distribute is illegal under VA Code 18.2-248.1.  There a number of factors that are considered by both the arresting officer and the Commonwealth’s Attorney assigned to the case in determining whether to charge the defendant with simple possession of marijuana or with possession with intent to distribute.

  1. Packaging – splitting up portion of marijuana (or any illicit drug for that matter) in plastic bags is an indication that the defendant was intending to distribute the drug.
  2. Scales and other equipment – if the officers find equipment used for measuring out allotments of marijuana or any other drug, it is very likely that you will be charged with PWID.
  3. Quantity – the amount of marijuana that you have in your possession is also a very strong indictor of your intent.  Generally a small amount is considered to be for personal consumption and will be treated as simple possession.  A large amount, however, is another indicator that you were intending to distribute the marijuana, rather than just use it individually.
  4. Defendant’s Behavior – the officer will provide testimony as to to the defendant’s statements or behavior, which could signal that the defendant intended to distribute the marijuana.
  5. Money – having a large amount of money present at the same time that marijuana (or any other drug) is discovered will immediately raise red flags concerning whether there was an intent to distribute the drug.  This generally suggests profits of previous sales of marijuana.

Penalties for Possession of Marijuana With Intent to Distribute (PWID):

  • Class 1 Misdemeanor Conviction
  • Up to 12 months jail
  • Up to $2,500 fine
  • Loss of driver’s license
  • Violations with more than 1/2 ounce of marijuana, but less than 5 pounds is a class 5 felony and is punishable by up to 10 years in prison.
  • Violations with more than five pounds of marijuana is a felony punishable by 5 to 30 years in prison.

First Time Possession of Marijuana Offense

Charged with your first possession of marijuana offense?  Click here!

Marijuana Possession & Illegal Searches

The Fourth Amendment of the Constitution protects against unreasonable searches and seizures, and this constitutional right is most often implicated in drug related offenses, particularly possession of marijuana.

Fairfax Marijuana PossessionSince the only evidence that can be used against you in court is the evidence that the police discover, it is critical to hire a marijuana defense attorney that can properly examine the facts of your case, the situation behind the search, and determine whether or not the search was conducted properly and that it was constitutionally valid.  If the search was not valid – generally because the police did not have probably cause to conduct the search – then all the evidence found cannot be used in court against you.  Often the result is that the charges against you will be dropped.

The Probable Cause Requirement For a Search

Police may search a suspect without first getting a search warrant only if probable cause exists to conduct the search.  This often comes into play in situations where the defendant has been pulled over while operating a motor vehicle.  Because the vehicle is a moving object, and is being operated on a public highway, there is a far lower expectation of privacy than, say, in your home.  Consequently, probable cause is all that is necessary to conduct a search of a vehicle.  However, the Supreme Court of the United States has held that the probable cause must be “particularized to the particular area of the vehicle.”  Consequently, just because an officer claims to smell marijuana, that itself does not give the officer probable cause to search every inch of the vehicle.  Rather, he only has probable cause to search areas of the vehicle that have a  “reasonable probability” of hiding marijuana.

Searching the Trunk of a Vehicle Upon Probable Cause of Possession of Marijuana

Whether or not an officer has probable cause to search the trunk of a vehicle that has been lawfully stopped to search for marijuana largely turns on whether the officer claims to smell “burnt” or “raw” marijuana.  While Virginia courts have not directly address this issue, the Court of Appeals for the 10th Circuit has made this distinction crystal clear.  If the officer smells burning marijuana coming from the passenger compartment of a vehicle that he/she has lawfully stopped, that officer then has probable cause to search ONLY the passenger compartment of that vehicle because it is not reasonable to suggest that the smell of burning marijuana is emanating from the trunk of the vehicle.  If, however, the officer testifies that he/she smelled “raw” marijuana, then the probable cause shifts to a wider “particularized area” because the probable cause relates to the possession of marijuana, and not necessary just to its use.  Again, having an experienced marijuana defense attorney is critical to determining whether any of these unjust search issues apply to your case.

Continue Reading on Virginia first offense marijuana possession.

Related Tags:

first offense DUI Fairfax Virginia, 251 First Offender Fairfax Virginia, DUI Lawyer Fairfax Virginia, DUI Attorney Fairfax Virginia, Fairfax Criminal Defense Attorney


Virginia Marijuana Offense Penalty List:

  • First Offense Possession – Maximum jail time of 30 days
  • Subsequent Possession Offenses – Up to 12 months jail
  • Possession of Marijuana With Intent to Distribute (PWID) – Up to 12 months jail.
  • Possession of Marijuana With Intent to Distribute, Over 1/2 ounces but less than 5 pounds – 1 to 10 years prison.
  • Possession of Marijuana With Intent to Distribute, Over 5 pounds – 5 to 30 years prison.
  • Possession of Marijuana With Intent to Distribute, 3rd or subsequent felony – Up to 12 months jail.
  • Selling less than 1 ounce of marijuana to a minor – 10 to 50 years jail, with a mandatory minimum of 2 years prison.
  • Selling more than 1 ounce of marijuana to a minor – 10 to 50 years jail, with a mandatory minimum of 5 years prison.
  • Manufacturing Marijuana Not for Personal Use – 5 to 30 years prison.

I hired Mr. Ervin to help with my possession of marijuana case. Other attorneys I spoke to told me that there was not much to do but take a plea deal and suck it up. But Mr. Ervin immediately saw problems with the case and thought that the search was illegal. We went all the way to trial and I was found not guilty. Mr. Ervin did a fantastic job! View on AVVO

Not Guilty!

Before contacting Mr. Ervin, I called two other attorneys about my synthetic marijuana case and they both told me that there was nothing to do and that I should just plead guilty and ask the judge for mercy. Luckily I made one more call to Mr. Ervin. First I liked that he was younger cause it felt like he talked to me like a person. He spent time explaining the case to me and agreed to help me out. He found out that there was a problem with the test and got the case dismissed. He did a great job and I'm very happy.View on AVVO

Awesome Defense

Mr. Ervin was my lawyer when I was facing a serious charge during a dark time in my life. I've been through the legal system before and I've met my share of lawyers. Most of them don't have the time to really listen to what I have to say. They don't care what my story is. Mr. Ervin did care, and he did listen. He won my assault case and I definitely recommend him!View on AVVO

Exceptional Lawyers Who Care

I am minor international student studying in the United States, and this was my first experience with the US court system. I had a serious criminal traffic matter, but Mr. Ervin carefully explained to me how the court system works and what I should expect. He put a lot of time into my case and was always available. It was a complicated case, but he got it dismissed in the first hearing. I would recommend him to anyone!View on AVVO

Great, Patient Attorney

I retained the services of Nabeel Kibria for a complicated criminal case, in which I was wrongfully accused. I was very concerned and apprehensive as I did not know exactly what I was walking into at the time. All I knew was that I was potentially facing jail time if convicted. Upon hiring Mr. Kibria he was very considerate, understanding and thoroughly explained the legal process moving forward.View on AVVO

Great Criminal Defense Attorney

I was charged with the criminal charge of reckless driving in DC. I was cited for various forms of reckless and aggressive behavior. As a Virginia driver I was very nervous and anxious about possible jail time and loss of license or revoked privileges if convicted. Mr. Kibria was such an excellent negotiator that he not only avoided trial, but he got my case dismissed after a very short diversion period, which I was actually able to choose. He also did all this at an amazingly generous rate. I was lucky to find Nabeel and recommend him to anyone in trouble. View on AVVO

Excellent Defense Lawyer

Fairfax Possession of Marijuana Attorney Overall rating: 5 out of 5 based on 1 reviews.
Ervin Kibria PLLC, 4023 Chain Bridge Rd., Suite 5, Fairfax, 22030, United States - Phone: 703-962-7790 Secondary phone: 703-962-7790 Fax: 866-709-5280