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Call Nichols & Green PLLC (703) 383-9222 to discuss your Virginia drug crimes defenses.

Luke Nichols and Garrett Green have defended hundreds of people accused of criminal offenses in Northern Virginia. Nichols & Green PLLC knows criminal defense and they know how to drug crime defenses. More more information on what drug crime defenses you may have, call Luke Nichols and Garrett Green for a free consultation and a free copy of their book The Virginia Drug Crimes Defense Manual (703) 215-1114.


The Government Can’t Prove Possession

A defendant cannot be convicted for drug possession unless the government can prove that the defendant possessed the drugs.

Possession is not the same as ownership. You can possess drugs that someone else owns. If you tell the police, “Those drugs belong to my friend, I’m just holding them for him,” that is a confession not a defense.

Possession means that you have some degree of physical control over the drugs. Having physical control over drugs can be as simple as holding drugs, storing drugs, moving drugs, using drugs, or touching drugs. However, having drugs in your system (being high) is not the same as possession because you no longer have any control over the drugs in your body.

Proving possession can be difficult. The police often cannot prove possession when they find drugs near a group of people (for example in a car full of people). The police may try to charge everyone in the area with possession in the hopes that one of them confesses.

However, the police must prove which member(s) of the group had physical control over the drugs. Without out some evidence of control over the drugs, the government cannot prove possession.

The Government Can’t Prove that the Defendant Knew Drugs Were Present

Possession occurs when you have physical control over something. Possession also requires knowledge. To possess drugs you must know that the drugs are present.

Being the driver or owner of the car is not enough to prove possession of drugs found in a car. The government must be able to prove that the defendant knew the drugs were present. The same rule that applies to cars can apply to homes, bags, and other property. If the drugs were not in plain sight or in your pants pocket, the police will probably be required to prove you knew the drugs were present.

The police will try to prove possession by getting the defendant to admit that they knew the drugs were present. That is why remaining silent and talking to your attorney about all conversations with the police is so important.

The Government Can’t Prove the Defendant Knew the Substance was Drugs

To prove that a defendant possessed drugs, the government must prove that the defendant knew the substance was marijuana, cocaine, or some other illegal drug.

This can be difficult when the possession charge is based on resin, residue, or trace amounts of drugs. For example, if an officer searches the floor of a car and finds a discarded baggie with one or two flecks of marijuana inside, the government will have to prove that the defendant knew those green flecks were marijuana.

In cases involving synthetic marijuana or prescription drugs containing controlled substances, the police may be required to prove that the person knew that those drugs contained an illegal substance. This can be extremely difficult to prove without a confession by the suspect.

In such cases, the police question suspects and try to get confessions. Always exercise your right to remain silent and tell your attorney everything you said to the police.

Government Cannot Prove Distribution

Possession with intent to distribute (PWID) is much more serious than simple possession. To prove PWID, the government must prove that the defendant possessed drugs and intended to distribute those drugs.

The government will try to use the defendant’s text messages and admissions, confidential informants, and undercover detectives to prove PWID.

The police will also try to use circumstantial evidence, such as scales, multiple small packages of drugs, large quantities of drugs, or large amounts of cash on the suspect. This type of evidence alone may not be enough to prove PWID. If your arrest for PWID is based on circumstantial evidence, discuss it with your attorney immediately.

The Government Can’t Prove the Weight of the Drugs

For many PWID cases and some possession cases, the weight of the drugs found on the defendant has a major effect on the outcome of the case. For example, PWID marijuana of more than .5 ounces is a felony, whereas less than .5 ounces is a misdemeanor.

In situations where the weight of the drugs may lead to elevated punishments, it is important that the government prove the exact weight of the drugs.

However, when weighing drugs that are mixed (or “cut”) with other substances, the weight of the entire substance, including impurities, is counted towards any enhanced punishments. For example, if a suspect is arrested for PWID cocaine mixed with baking soda, the combined weight of the baking soda and cocaine is used for sentencing. The defendant cannot avoid the enhanced punishment by claiming that only part of the weight was actually cocaine.

Often the police will attempt to weigh the drugs while they’re still inside their packaging, which can sometimes add significant weight to the measurement.

When the drugs are measured, the quality and calibration of the scale may come into question and the person who measured the drugs may be forced to appear in court for cross-examination by your attorney. If the person or techniques used to weigh the drugs do not stand up to cross-examination, or if the person who did the weighing fails to appear in court, the weight of the drugs may be excluded from evidence.

The Government Can’t Prove a Miscellaneous Element of the Crime

Several drug crimes include miscellaneous elements. Some examples could include: the defendant’s proximity to a school at the time of possession, whether a BB gun found on the defendant counts as a firearm, and whether a prescription the defendant used was forged.

The government has to prove all elements of the crime beyond a reasonable doubt. When talking to your attorney it is important to discuss each element of the crime and whether or not the government can prove each one.

Illegal Search

Evidence produced by an illegal search cannot be used at a trial. In most drug cases, an illegal search results in the dismissal of the entire charge. It is important to understand your rights in order to communicate effectively with your attorney.

If the police searched you or your property, our web page on illegal searches and seizures and discuss your search in detail with your attorney.

Illegal Stop/Seizure

A seizure is when the police restrict your freedom. Some examples of seizures include: being pulled over, being arrested, being handcuffed, being ordered to do something, or having the police take control of your possessions.

Every drug case involves at least one seizure by the police. You and your attorney should discuss and identify each seizure and its constitutionality. If a drug case is based on an illegal seizure, the case may be dismissed entirely.

To learn more about illegal seizures, read the chapter on illegal searches and seizures and discuss it with your attorney.

Illegal Arrest

An officer must have sufficient evidence that a suspect committed a crime before arresting them. The police cannot justify the arrest with evidence they find after the arrest,

When talking with your attorney, make sure you clearly communicate the point at which each piece of evidence was found and the point at which you were arrested.

Illegal arrests happen most frequently when a person is arrested for a very minor nuisance crime (for example, being drunk in public or disorderly conduct). When an officer arrests someone for these types of offenses, the officer is often only concerned with getting the person off the street. The officer may not care whether the minor charge actually results in a conviction so they may be sloppy about whether or not the arrest is valid.

However, as the person is being arrested and searched, the officer may find drugs and then charge the person with the additional drug crimes. If the defense attorney can show that the initial arrest was invalid, then both charges will be dismissed.

If your drug charge stems from an arrest for another charge, discuss that other charge in all of its detail, because it may be very important to your drug case.

No Laboratory Drug Test

The government must prove beyond a reasonable doubt that the substance in question was not only a drug, but the specific type of drug as well. This usually requires a drug test.

There are two basic types of law enforcement drug tests. There are the field test kits that the police on the street use to justify a drug arrest. And there are the tests run by the Department of Forensic Science (DFS) laboratory which are used to convict defendants of drug charges.

For most drug cases the field test kits are not reliable enough to justify convicting someone. The government must have a DFS certificate of analysis which states the exact type of drug and the quantity.

The one exception to this rule is simple possession of marijuana. The government can convict someone of simple possession of marijuana without a DFS laboratory test only if the officer or the government notifies the defendant of their right to request a DFS lab test.

If the government fails to notify the defendant of their right to get an independent DFS lab test, the government may not be allowed to use the marijuana field test kits as evidence at trial. If you are charged with possession of marijuana, discuss with your attorney whether or not you received any paperwork regarding your right to get the marijuana tested.

An Invalid Certificate of Drug Analysis

The US Supreme Court case MelendezDiaz v. Massachusetts changed drug prosecution in the United States. The Melendez-Diaz ruling states that a defendant has a constitutional right to cross-examine technicians who perform drug tests in police laboratories.

If a defendant is not given an opportunity to cross examine these witnesses, then the court may determine that the lab test is not admissible evidence.

Excluding the laboratory certificate of analysis in a drug case may result in a dismissal.

In Virginia, a prosecutor may attempt to restrict your Melendez-Diaz rights. A competent criminal defense attorney can easily prevent this from happening by filing a notice with the court within a very specific time period. Make sure you hire a criminal defense attorney as soon as possible so that your attorney has enough time to file this paperwork.

Invalid Drug Test Kit

Police can only use a valid drug test kit. To be valid, the make and model of the kit must be approved by the Department of Forensic Science (DFS).

Also, the kit must be used properly and before its expiration date.

The Marijuana Stalks Were Mature

Mature marijuana stalks have very little THC and no real recreational value but can be used for legal purposes. Consequently, mature marijuana stalks are not considered marijuana under Virginia law.

If the marijuana found on a defendant is residue, ash, or indeterminate plant material, the government may not be able to determine whether it is from the stalk of a mature marijuana plant. Drug testing will only determine whether the material contains any measurable amount of THC, and residue from mature stalks can also test positive for THC.

The Officer was Outside His Jurisdiction

A county or local police officer can only act as a police officer inside his own jurisdiction.

Make sure you know what type of police officer pulled you over, stopped you, and arrested you (county, state, federal, city/town, college police, metro police, or park police). If you were stopped, chased, or arrested outside the officer’s jurisdiction tell your attorney immediately.

College or university police officers have jurisdiction on campus property and on roads abutting campus property. The Washington Metropolitan Airport Authority Police have authority at Dulles and Reagan National airports and along some of the access roads (such as the Dulles toll road).

County, city, and town officers generally can enforce the law 300 yards outside of their jurisdiction. They can also chase a person up to a mile outside their jurisdiction.

Multiple Officers Involved In Your Case

During an investigation, traffic stop, search, or arrest, there are usually several officers on the scene. However, only one officer should be interacting with the suspect.

The first officer on the scene should take charge as the arresting officer while the others should be there only as back-up in case of emergency.

The reason for this rule is simple. An officer can only testify to what he personally witnesses, not to what someone else witnesses. If multiple officers are involved in the investigation, then more than one officer may be required to show up at trial.

Each officer is scheduled to appear in court on a dedicated court date. It can become a logistical nightmare if multiple officers are required on your case. This can be a major strategic advantage for the defense, but only if the defense attorney is aware of the situation.

If someone other than the arresting officer stopped you, searched you or your property, found evidence, questioned you, or otherwise interacted with you, talk to your attorney immediately. Make sure your attorney knows which officers did what.

Wrong Court (Wrong Jurisdiction)

Before a court can pass judgment on you, it must have jurisdictional authority. General District Court has no authority over minors, and Prince William County courts have no authority over cases that occurred in Arlington. The Federal courts cannot hear state law cases that occurred outside of federal jurisdictions. Make sure your attorney knows where each aspect of your case occurred and what court you have been summoned to appear in.

Invalid Warrantless Arrest

Under Virginia law, a police officer is allowed to arrest a person for a misdemeanor without a warrant only when the officer witnesses the crime or under very specific circumstances.

Those circumstances include: the scene of a car accident on a public road, at the hospital after a car accident, in shoplifting cases, in DUI cases (within three hours of driving), and a few other situations.

Your arrest may have been invalid IF:

  • You were arrested for a misdemeanor

  • The police officer did not have an arrest warrant

  • The officer did not witness you commit the crime and

  • You were not at the scene of a motor vehicle accident on a public road, transported to the hospital after an accident, shoplifting or drunk driving within three hours of the arrest.


Pre-Sentencing Report and Sentencing Guideline Errors

Figuring out what punishment to give a person can be much more complicated than determining whether they are guilty. The Pre-Sentencing Report and Virginia Sentencing Guidelines are prepared by probation officers and used by judges when sentencing the defendant.

The Pre-Sentencing Report is 20 to 40 pages. The probation officer will interview the defendant before the sentencing hearing to gather information for the report.

The probation officer will ask the defendant their version of events, their background, their employment, and their substance abuse history, among other things.

A favorable and accurate Pre-Sentencing Report can be extremely beneficial. The defendant should be prepared for the interview and review the final report with their attorney prior to the sentencing hearing. Many of these reports contain errors which should be clarified before the sentencing hearing.

The Virginia Sentencing Guidelines are a complex series of mathematical formulas and charts that determine a defendant’s recommended punishment. This formula is calculated by the probation officer and included in the Pre-Sentencing Report.

Past criminal history, number of counts, whether a weapon was involved, juvenile record, whether the defendant has served jail time, the amount of drugs, and the defendant’s probation status at the time of the offense are all examples of factors that affect the sentencing recommendation.

It is very common for the sentencing recommendation to be calculated wrong. These errors can be caused by flawed criminal background checks, inaccurate court records, human error, or vagueness in the guidelines themselves.

These errors can be the difference between no jail time and years in jail. Your attorney must know everything about your adult and juvenile criminal record whether it happened in Virginia or outside Virginia. Your attorney must also be well versed and trained in calculating the Virginia Sentencing Guidelines. Always review your Pre-Sentencing Report and your Sentencing Guidelines with your attorney prior to your sentencing hearing.

The 251 Program (First Offender Program)

Va. Code 18.2-251 states that the courts may place first-time drug offenders in a special program called the “251 program.” If the defendant successfully completes the drug program the case may be dismissed.

The 251 program differs slightly from locality to locality, but it typically involves all of the following:

  • 6 to 12 months of probation

  • Fines, court costs, and fees

  • 100 percent abstinence from drugs and alcohol

  • Passing drugs and alcohol tests

  • 24 hours of community service

  • A six-month license suspension

  • 10 weeks or more of ASAP classes.

Even though successful completion will result in dismissal, there are some hidden downsides to the 251 program.

Completing the 251 program does NOT mean the criminal record is sealed or hidden. When you are arrested for any criminal offense, a record of your arrest is made. Likewise, the results of the criminal case are also recorded.

If you plead guilty and complete the 251 program your records will indicate that you pled guilty, completed a program, and the case was dismissed. Most if not all of this basic information will be public.

You cannot get an expungement or seal your record if you plead guilty or enter the 251 program.

Another problem with the 251 program is that you still lose your driver’s license for six months. Talk to your attorney to determine whether a restricted license may be available.

If you are not a US citizen, the immigration consequences of completing the 251 program and being convicted are exactly the same. Most drug crimes, including simple possession of marijuana, will likely result in deportation.

If you are on probation or parole, entering the 251 program may result in a probation violation. If you are on any type of probation or parole you must talk to an attorney about it before deciding to enter any programs. A 251-dismissal may still land you in jail.

Not everyone can successfully complete the 251 program. If there is any doubt as to whether you can successfully pass all the drugs test, complete the courses, and stay out of legal trouble for the entire probation period, you should discuss these problems with your attorney. Do not get set up for failure.

Your attorney may be able to arrange a plea to another offense (such as possession of paraphernalia) that does not involve a loss of license, ASAP classes, probation, or drug testing.

Even felony drug possession charges may be dismissed via a 18.2-251 disposition if the judge is willing to allow it. Getting a 251 disposition for felony drug possession is much more discretionary and not necessarily allowed as a matter of right.

An experienced criminal defense attorney can give you counsel on how to obtain a 251 disposition for a drug possession charge and whether a 251 disposition is right for you.

For more information on the 251 program read Chapter 9.

The Do-It-Yourself 251 Program

There are many reasons why a first offender program or ”251 program” may be unacceptable to a defendant charged with simple possession of marijuana: the six-month loss of license, the immigration consequences, or the effects on education, security clearance, or employment.

One alternative may be an unofficial or “do-it-yourself” 251 program.

In this scenario, defendants put themselves through something very similar to the 251 program prior to their court date. They abstain from all drugs and alcohol, they do 25 hours of community service, they go through drug and alcohol testing, and they may even sign up for ASAP or a similar program.

After completing all of these difficult and time-consuming tasks, the defense attorney presents this to the prosecution in an attempt to get the prosecution to dismiss the charges. If the prosecution dismisses the charges, there is no record of conviction at all.

Unlike the official 251 program, the do-it-yourself version will not trigger deportation, security clearance violations, or in any way appear on your record as a conviction. Neither will it result in a six-month loss of license.

Of course, this strategy has no guarantees. After all of that hard work, the prosecutor may refuse to agree to dismiss the charge. If the defendant then has to go through the regular 251 program, their pre-trial community service hours and drug testing efforts cannot be applied to the regular 251 program requirements.

This defense strategy takes a lot of time and it is not a good fit for everyone. There is no substitute for consulting a criminal defense attorney as soon as possible.

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