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Marijuana

For a full discussion on defenses and requirements of proof related to marijuana and drug possession generally, go to our Drug Possession & Distribution  page.  Below is a discussion on the decriminalization of personal use marijuana. 

Effective July 1, 2020  simple possession of marijuana will be decriminalized in Fairfax County, and everywhere in the Commonwealth.  Possession of personal use marijuana, whatever the amount,  will be punished as a civil offense with a fine of only $25.00, and no court costs.  This sounds pretty good for those that consume marijuana.  However, you may still need a seasoned marijuana lawyer.  Here are some things to consider:

  • If you possess an ounce of marijuana or less (but not more than an ounce) there is a rebuttable presumption the marijuana is for your personal use - this presumption can be rebutted.  The issue to rebut - whether you possess the marijuana with the intent to distribute (PWID).  That remains illegal and a crime, a Class 1 Misdemeanor.  A rebuttable presumption in favor of a defendant, however, is very beneficial...the law presumes personal use which falls to the defendant's favor for amounts one ounce or less.
  • The presumption of possession for personal use (now a civil penalty) does not exist for amounts in excess of one ounce - the Commonwealth would still have to prove beyond a reasonable you possessed with the intent to distribute to show a crime occurred.  This means that if few possessed several ounces, for example, there would not be a presumption of personal use.  PWID in that amount would be a Class 5 felony.  PWID of more than 5 pounds would be punishable as an unclassified felony of not less than 5 years but not more than 30 years confinement - no mandatory minimum, however.
  • Any actual distribution of marijuana, whatever the amount, is still illegal - a crime.  Distribution of an ounce or less would be Class 1 Misdemeanor; more than an ounce but not more than 5 pounds, a Class 5 Felony; any amount distributed in excess of 5 pounds, an unclassified felony described above.
  • It is still illegal and a crime to possess marijuana with the intent to distribute (PWID) or to actually sell, give or distribute the marijuana.  If the amount at issue was an ounce or less, the charge would be a misdemeanor; more than that and the charge could be brought as a felony.
  • Police officers still have the ability to stop, search, and seize marijuana - even if only the civil violation applies.  This is because they must investigate to determine whether you are possessing a personal use amount subject to a civil fine or whether you are possessing any amount with the intent to distribute.
  • This investigatory power and the ability to search based off plain smell will still continue the same as before.  In other words, how is an officer to know whether you have a personal use amount unless he investigates and searches you and your belongings.

Personal Note - As a former prosecutor, I can tell you of an overwhelmingly common practice that occurred by law enforcement under traditional marijuana laws (prior to July 1, 2020): If a person was found with less than half an ounce of marijuana the officer would charge misdemeanor simple possession.  He would only charge misdemeanor PWID if there was actual evidence of intent to distribute.  Evidence of such an intent could be a confession, multiple baggies in possession with the marijuana, owe sheets, and any other indicia of distribution.  However, if an officer came upon a person with more than a half ounce , which under traditional marijuana law would still be a simple possession unless there was evidence of intent to distribute, he would charge felony possession of marijuana with the intent to distribute.  This would be the case even if there was no other evidence of distribution of marijuana - no confession, no owe sheets, no baggies, no scale, no texts on a phone.  While the greater the weight the more likely it is a person intends to distribute, commonsense tells us that an ounce or two could easily be for personal use...a pound or two is a different story.

What would happen at court?  When a felony was charged absent a great weight of marijuana, with no other indicia of intent to distribute, the charge would be reduced to either misdemeanor simple possession, or misdemeanor PWID, as part of a plea negotiation.  This was because the prosecutor knew that the felony charge likely could not be proved beyond a reasonable doubt without more evidence; a defendant would enter such a plea to avoid the chance of a felony conviction. 

The curiosity we now face - will a similar practice develop by law enforcement in Fairfax County?  Will officers who find a person with more than an ounce of marijuana simply charge PWID and let the case be resolved in Court with the prosecutor, meaning let the case likely be reduced to simple possession which now will be a civil penalty of $25.00?  Will marijuana possessors, more often than not, still be charged with some type of criminal offense necessitating a trip to Court in order to hope for a civil penalty?  Without the presumption, what will be charged for amounts over an ounce under the new law?  

I don't see much changing for those who smoke marijuana in Fairfax County, but only time will tell.  Remember, decriminalized does not mean legal.  The police can still stop, search, and seize - and this sometimes leads to finding other contraband.  Other contraband can lead to criminal charges.

To be clear, it is certainly better to suffer a civil penalty for personal use possession of marijuana than a criminal prosecution.  As a civil offense, you will not be fingerprinted; your "charge" will not be transmitted to the Central Criminal Records Exchange in Richmond; your driver's license will not be suspended as it was under traditional marijuana law; you will not be subject to probation or other court supervision; and you will not face a possible jail sentence.  

To learn more about the Law of Possession and Defenses to Marijuana and Drug related charges, click here and go to our Drug, Possession & Distribution page.

If you have a matter that involves a marijuana criminal charge in Fairfax County, contact George Freeman today to discuss your case; he is an experienced Fairfax Criminal Lawyer dealing with misdemeanor and felony marijuana cases.  

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