If you’ve been charged in Virginia with possession of marijuana, do not plead guilty! 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. Listen: there is absolutely no reason you should EVER plead guilty to possession of marijuana. There are two very good reasons I say this:
- 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;
- 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. And as I said, even if you have a trial and get convicted, 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. All too often I see folks with lawyers pleading guilty when the case could have been won!
There are two main ways 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.
ILLEGAL SEARCH OF VEHICLE
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 many times to get our clients’ charges dismissed.
If you are facing a charge of possession of marijuana, don’t plead guilty! Contact Gardner & Mendoza, P.C. or give us a call today at 757-464-9224 for a FREE consultation!
This article is written for educational purposes only and is not intended as legal advice. We cannot guarantee outcomes but we will always do our very best to help you in your case.
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