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Constructive Possession of Marijuana in Virginia

Recently a wide number of states have legalized the possession of marijuana.

However it is still illegal to possess any amount of marijuana in Virginia. The possession of marijuana in small quantities is a misdemeanor. An individual may also be charged with possession with intent to distribute marijuana. Half an ounce to 5 lbs. can net you up to ten years in prison, while more than 5 lbs. will get you up to thirty years.

Plain Smell Doctrine

Furthermore, the plain smell doctrine makes it easy for an officer to have probable cause to search your person or your vehicle for marijuana. The plain smell doctrine states that an officer who smells marijuana, either burnt or unburnt, possesses probable cause that the person may be in possession of marijuana; therefore, they may search the person or the vehicle.

For example, let’s say you are in a car with three other individuals. You are in the back seat while the two others are in the front seat. You do not know the person in the front passenger seat but upon his entry he takes out some marijuana and places it in-between the driver’s seat and his. Shortly after you pick up this individual you are pulled over by the police and once they approach the car they smell and then notice the marijuana. The officer has the authority to cite everyone in the car for possession of marijuana, although you never touched the drug.

Constructive Possession

The law in Virginia concerning the possession of marijuana requires the controlled substance to be within the dominion and control of the person. It does not require the person to actually possess the marijuana on their person. If you could grab it and you knew or likely knew of its presence you can be cited for it, even though it was not yours.

If you are charged with possession of marijuana, the prosecutor must show beyond a reasonable doubt that you had dominion and control over the marijuana. This will often involve having the officer testify to the position of the marijuana in the car or the home, if it was in plain sight, if it was reasonable for you to know of its existence.

The contrastive possession aspect of marijuana possession can be scary for people who were simply in the wrong place at the wrong time. Fortunately there are many defenses to a possession of marijuana or other controlled substance charge. The Virginia attorneys of Simms Showers are experienced in a wide variety of criminal law matters and can advocate for your rights. Reach out to us today for help.

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