The “It’s Not Mine” Defense for Marijuana Possession in Virginia

In countless television shows, the criminal is pulled over and the vehicle is searched. When marijuana is found, the accused often replies, “It’s not mine.”  While in the plot of the show this may or may not be true or, what happens in real life when this type of situation occurs?  Obviously, it adds intrigue to the plot of a cop show but what happens when your criminal record is at stake?

Virginia’s Possession Law

Firstly, possession of any amount of marijuana is illegal in Virginia. It is a misdemeanor and is subject to punishment of up to 30 days in jail and with a maximum fine of up to $500. If you are convicted, you will have a criminal record for the rest of your life. A second offense rises to the level of a Class One misdemeanor which is punishable by up to one year in jail and a fine of $2500. Even further, Virginia law makes a provision that anyone convicted of possession loses their driver’s license for six months. The license suspension provision applies even if a first time offender opts for deferred adjudication. Perhaps the penalties for possession in Virginia are a little more serious than many people give them credit for.

“It’s Not Mine” Defense

Virginia law does have an interesting wrinkle when it comes to an accused stating that the drugs do not belong to them. Possession of marijuana in Virginia requires intent or knowledge. This is to say that the law does not criminalize the behavior if you accidentally or unknowingly had marijuana in your possession. Mere proximity or control over the area where the drugs are located does not create a presumption of possession. The Commonwealth, in order to convict you, must prove that the accused:

·      Was aware of the presence of the marijuana

·      Knew that the substance was, in fact, marijuana

·      Consciously possessed the marijuana

All of this must be proven beyond a reasonable doubt. Fortunately for the accused, this is often difficult for the prosecution to carry out.

With this being said, circumstantial evidence can still be used to obtain a conviction. This means that the way the accused behaves can have an impact. Furtive or nervous behavior is often said to be indicative of the accused’s knowledge. As anyone who has been around marijuana knows, it has a distinct aroma. If the police smell this inside a dwelling or a vehicle or on the person of the accused, they will use this to argue that the accused clearly knew of the presence and character of the substance. Finally, the statements of the accused and any witnesses can also be used to establish circumstantial evidence that can be used to prove constructive possession.

With the loosening of restrictions on marijuana possession in many areas of the country, many people think marijuana possession is not a serious charge anymore. In Virginia, this is just not the case. A conviction can result in a criminal record, jail time and the loss of driving privileges.  If you find yourself charged with possession in Northern Virginia, you need to take it seriously.  Jad Sarsour has defended hundreds of clients from drug possession charges. He has the experience and expertise to get to the bottom of all of the circumstances surrounding a drug arrest. Give him a call at (571) 316-2639 to set up your initial consultation and begin defending your rights today.