The attorneys at Ervin Kibria PLLC are committed to providing updates and insight into changing criminal offenses in Virginia and DC.
If you’ve been charged in Virginia with possession of marijuana, do not just plead guilty. Due to the seriousness of the offense, we strongly recommend that you contact the Virginia marijuana defense lawyers at Ervin Kibria PLLC. There are defenses that you and your attorney should thoroughly consider. Because possession of marijuana charges are so common in Virginia, it would not be surprising if you’ve probably had a friend, a co-worker, or even an attorney tell you that you should just plead guilty to the charge and ask for “first offender” status. However, there are two very good reasons why everyone charged with a marijuana offense should consult and attorney before taking any action in court:
(1) You do NOT have to plead guilty to the charge in order to be eligible for the “first offender” program; if you are eligible for the program, you can be placed into it even if you plead not guilty, have a trial, and get convicted;
(2) You can WIN at trial. Don’t let anyone tell you that possession of marijuana cases are impossible to win – they’re not!
There are several ways to win a possession of marijuana case, from illegal searches of your car, to “constructive” possession defenses. Additionally, even if you have a trial and get convicted of your marijuana offense, you still are eligible for the “first offender” program. So, plan A should be to get the charge dismissed, and the “first offender” program should only be used as a plan B.
There are a couple primary methods to win marijuana possession cases, and I’ve successfully used them both many times. One is to identify an illegal search, and the other is to identify a “constructive possession” case and argue it properly.
I have won many possession of marijuana cases based on an illegal search of my client’s vehicle. In those cases, even though the officer comes to Court with an evidence bag filled with marijuana that he recovered from my client’s car, because we successfully argue that the search of the vehicle was illegal, the marijuana is excluded as evidence and the charge is dismissed.
In order to search your vehicle, police officers have to have either (1) your consent to search (never give it!), or (2) “probable cause” to search. If you give them consent to search, you’re kind of out of luck. Not always, but usually. But if the search is based on the officer’s “probable cause”, the search may be illegal. We know the factors the Court can, and must, consider in making this determination. And because of that, we know what questions to ask the officer on cross-examination to win your case.
Even if the Court rules that the search of your vehicle was legal and that the marijuana that was found can properly be admitted into evidence, you still may have a “constructive possession” case. Often, the marijuana is found somewhere other than in your pants pocket: it’s in the consul, or a seat pocket, or the glove compartment, under the seat, in a backpack, etc. When this is the case, there has to be sufficient evidence that you had “constructive possession” of the marijuana. That is, that you had control over the marijuana, and that you knew it was there and knew what it was. If the evidence is insufficient to prove these elements, the charge can be dismissed. Makes sense, right? For example, if you rent a car and have no idea that the last person who drove the car forgot his marijuana under the seat, then you’ve got a defense! Most cases are more complicated than that, but the issues are always the same – did you have control over the marijuana, and did you have knowledge of its presence and character?
We know the factors the Court can, and must, consider when making this determination. And because of that, we know what questions to ask the officer on cross-examination to win your case. This is an excellent defense to possession of marijuana, and one that I have successfully used to get our clients’ charges dismissed.
Justin Ervin is a criminal defense and immigration attorney who practices in Northern Virginia.