De Facto Decriminalization of Possession of Marijuana for Personal Use
The Commonwealth’s Attorney for the City of Alexandria, Bryan Porter, is making good on his intention to “embrace new ideas” as his office continues to conduct an internal policy review aimed at modifying or eliminating old and ineffective practices (read the latest Washington Post article on this issue here). A recently-announced Marijuana Diversion Program effectively decriminalizes possession of a small amount of marijuana for personal use in the City of Alexandria, Virginia.
Under current Virginia law, it is illegal for a person to possess any amount of marijuana, absent a valid prescription. A first-time offender convicted of misdemeanor marijuana possession may face jail time of up to 30 days and a fine of up to $500. Potential penalties increase for subsequent convictions.
Virginia does have a diversion program for first-time drug possession offenders that allows for the eventual dismissal of the case after certain conditions are met. A participant in the state-wide program must admit to facts that would result in a guilty verdict, but the court holds off on entering a judgment of guilt while the person is placed on probation and given time to complete the conditions. Such conditions generally include completion of a substance abuse program, drugs tests, community service, potentially driver’s license suspension, and payment of costs and fees. Assuming the person successfully completes the conditions (if the person fails to complete or violates any conditions then the court may enter a finding of guilt) the court will dismiss the charge.
However, the state-wide program is only available to offenders who do not have a criminal record and case records cannot be expunged once the charge is dismissed—generally such records are publicly available. Further, pleading guilty to a misdemeanor possession charge, even if the case is ultimately dismissed, may have serious immigration consequences if the person charged is not a U.S. citizen. Finally, the diversion program costs and fees can add up to be a significant hardship.
In contrast, under Alexandria’s new Marijuana Diversion Program, successful participants would be eligible to request expungement of the record of the charge and court proceedings, and the Commonwealth’s Attorney Office “will liberally agree to such requests.” The opportunity for expungement can be of enormous value to people for whom a criminal record constitutes a substantial hurdle to education, professional and housing goals.
In addition, Alexandria’s diversion option could be available to people even if they have a prior criminal record and the program does not require payment of a fine or court costs. In addition to the new Marijuana Diversion Program, Mr. Porter previously made other policy changes as part of his “Vision 2020” review. More on those changes, which involve: (1) interdiction cases, (2) driving on suspended charges for failure to pay fines and costs, and (3) felony driving charged for failure to pay fines and costs, can be found here.
If you have a criminal case related to marijuana possession in Virginia, contact the office today for a free consultation.
