In many states the simple possession of marijuana has been either decriminalized or made legal for medical or recreational use. As a result, even Virginia (which is typically slow-moving in progressive thinking) has lightened the punishment for marijuana possession. However, a charge of Possession of Marijuana With Intent to Distribute remains a serious charge in Virginia and the Judges in Fairfax County still issue hefty punishments for the offense. This is because the Court considers the offense to be "drug dealing" and, while extreme, some Judges have coined dealers to be predators who take advantage of innocent addicts. We find this position to be ridiculous, close-minded, and will do everything we can to change that thought process.
The main difference between marijuana possession and distribution of marijuana in Virginia is the "giving" to another either by sale or gift. Virginia Code §18.2-248.1 governs the punishment for this offense. Possession With Intent to Distribute Marijuana can either be a felony or a misdemeanor depending on the weight.
Misdemeanor Possession of Marijuana With Intent to Distribute
It is a Class 1 Misdemeanor if the amount sold or otherwise given is not more than one-half ounce. Misdemeanor possession of marijuana is typically charged in cases when a small amount of marijuana is found but it is individually wrapped in baggies. In addition, a scale may be present. The good news is, regardless of how the marijuana is packaged, the smaller amount located is more tantamount to simple possession of marijuana.
We have also had many cases where the arresting "eyeballs it" and thinks the amount is greater than one-half ounce and charges it as a felony. However, by the time the analysis of the substance is returned from the department of forensic science, it is many times less than one-half ounce which can be a saving grace.
Felony Possession of Marijuana With Intent to Distribute
If the amount given is more than one-half ounce and less than five pounds, it is a Class 5 Felony. Possession With Intent to Distribute Marijuana of more than one-half ounce is a very common charge because most people want to purchase between a half-ounce and an ounce.
In felony cases, there are two main types of Possession With Intent to Distribute:
- Straight Distribution of Marijuana
- Possession With Intent to Distribute Marijuana
In Distribution of Marijuana cases, there is a sale to either a confidential informant or an undercover detective. A confidential informant is used in many cases because they were trying to "work off" charges of their own. They get caught doing something wrong and the officer offers a reduction or outright dismissal of their charge if they go undercover and purchase a drug from a seller. The officer can then arrest the seller. Many people that come to our office get charged with Distribution of Marijuana and do not know why until we ask them if they ever sold to anyone they were not familiar with. That person is generally the confidential informant (known as a "CI"). Some friend vouches for them as "cool" not knowing they've got legal issues of their own they are trying to address. Then, months later, the client calls with a charge thinking they got the wrong guy.
In other cases, Possession With Intent to Distribute arises because there is a large amount the officer deems to be inconsistent with personal use. In addition, the marijuana is separate in individually wrapped baggies and, sometimes, a scale is also present. Finally, the client may admit to selling to help out finances or some other need for money. So while there was no sale observed, there was the "intent" to sell the stuff.
The Virginia Code also criminalizes Distribution of Marijuana by accommodation. However, this "gift" of marijuana can really help a case. If the person can prove by a preponderance of the evidence that they gave the marijuana to another without the intent to profit from it then they are guilty of a Class 1 Misdemeanor rather than a felony.
Anyone who grows marijuana is guilty of manufacturing marijuana in Virginia if not for their own use.. This is a more punishable offense by statute because it carries a prison sentence of five to 30 years with a fine of up to $10,000. As a result, even one plant can be one count of manufacturing if the Government can prove there was an intent to sell or give it to another. However, one plant is unlikely to activate this part of the statute since it lacks the amount that would necessary for sale.
Defenses to Possession With Intent to Distribute Marijuana
Just because there was a lot of marijuana in the area does not necessary mean possession with intent to distribute. Aside from proving it is marijuana, the Government will have prove possession of it. Proximity ("closeness") to it is not enough to prove knowledge and neither is ownership of the premises or vehicle. This is because we don't know whether or not the person knew it was there. Obviously, if they are passenger in another's car or a visitor to a home, they are not deemed to know everything that is going on around them and the law does not require them to find out.
Even if the Government can prove possession, whether or not they can prove an intent to distribute is another required factor. For example, if the officer's find a half-ounce of marijuana divided into 3 baggies and locate a scale, they will likely charge the person for possession with intent to distribute. However, they don't know if the person purchased the marijuana in that form. In addition, the person could own a scale so they can weigh their purchase to ensure it's the right amount. Even better, if they find paraphernalia such as a bowl or bong, that signifies an intent to use for personal use. However, large sums of cash or many baggies can present a problem because it is not indicative of personal use. Finally, any statements that were made to the police can either sink the case or win the case. What did the client say to the police? It's for personal use? Or were they going to sell it?
In straight hand-to-hand sales (Distribution of Marijuana), defenses can be more scarce. Many times, the confidential informant is working off charges of their own they may have a motive to lie about the transaction. After all, they have to return to the police with something so they can get their charges reduced or dismissed. We want to ensure that the informant was searched both before and after the sale or exchange. We have seen cases where the informant was not searched before their interaction with our client so we simply don't know whether they brought their own marijuana to the sale and then turn around and claim to the detectives later that the seller sold it to them. Also, they must show that the informant was watched during the entire exchange. We want to avoid a situation where the informant meets with the seller, buys nothing, and then buys some on his own from a friend to bring back to the detectives and then claim our guy was the seller.
In cases where the Government can prove their case (in our opinion beyond a reasonable doubt), we will work with the prosecutor towards reducing the charge as much as possible. For example, if the amount was less than one ounce and our client has no prior record, we will work towards a reduction to a misdemeanor so that our client avoids a felony conviction. We may have our client attend drug treatment, do community service or, sometimes, even our clients will "work" with detectives. Of course, the latter we leave up to our clients and never pressure them to be a "nark" if they don't wish to be.
We offer a free consultation and would be happy to either sit down with you or speak to you over the phone or email to discuss your case. Possession With Intent to Distribute Marijuana charges should be handled by a competent attorney and you never want to represent yourself in these cases. Remember, it may "just be some pot" but it's not a simple marijuana possession case you are dealing with (no pun intended).