Up in Smoke? Criminal Defense Attorney Joseph Yoon Can Help Clear the Air


The movement to legalize marijuana for not only medical, but recreational use as well has hit the mainstream hard in the past decade and continues to gain momentum. As of June 2017, 29 states and Washington DC recognize marijuana as legal for medical purposes, and 8 of those states, plus Washington DC have legalized it for recreational use. The Commonwealth of Virginia is not one of those states.


Proving Your Possession of Marijuana


In order to have you convicted of violating VA Code § 18.2-250.1, the Commonwealth must prove four things beyond a reasonable doubt: You 1) knowingly or intentionally 2) were in possession 3) of marijuana 4) without a valid prescription for it.


  • “Knowingly or intentionally” – Were you aware of the presence of the marijuana and what it was? How you were acting (your demeanor, unusual behavior, etc.) and any statements you may have made to the officer will be used by the court to achieve a conviction.
  • “Possession” – This essentially means being in control and having power over the marijuana. You can be found in possession through two general ways: “actual possession” and “constructive possession”. Actual possession is when the marijuana is on or inside the body in some way. So it is in some way directly connected to the body itself, and thus in possession.

If you are charged with constructive possession, then this means that although the marijuana may not have been directly on you, it was in some place where you still had control over it. This means it could be somewhere in the car that you are driving, or hidden somewhere only you know of; regardless, it could be argued that you have the ability to access it just the same.

Even if you were not necessarily the owner of the marijuana, you can still be convicted for being in possession of it.

  • “Marijuana” – What constitutes as “marijuana” can be (as defined by Virginia Code §18.2-247(D)) “any part of the plant”, whether it be seeds or resin, and anything that can be used for the preparation of the plant.

Penalties for Marijuana Possession


In the Commonwealth of Virginia, marijuana is classified as a Schedule VI substance; the lowest end of the Schedule I – VI scale of banned substances. Still, drug crimes are taken seriously in Virginia and “knowingly or intentionally” (18.2 – 250.1) possessing marijuana is still considered a Class 4 misdemeanor. The first offense can lead to a possible extent of 30 days in jail and a fine of up to $500. Any more offenses are treated as a Class 1 misdemeanor and raises the maximum jail sentence to 12 months and/or a maximum fine of $2,500.00.


If found guilty, further punishments could be added as well:

  • a permanent criminal record that can’t be cleared
  • Probation
  • license suspensions
  • community service
  • required rehabilitation

The “251 Program”


If you have not been previously convicted with possession of marijuana and/or had similar charges dismissed, but end up being found guilty of this charge, then you may be eligible for what is called the “251 Program” (18.2-251) in order to avoid a conviction. This allows the defendant to have the charge dismissed in exchange for probation, and on the condition that they agree to certain terms. These terms include (finding and) maintaining employment, 24 – 100 hours of community service, attending treatment and/or education programs, and periodic drug testing to confirm their sobriety during the period of the program.


However, going through with this program still shows a criminal record during the time the accused participates in it. Although the record will state that the charge was dismissed following completion of the program, because of the fact that you have plead guilty it will not indicate you were “not guilty”, and instead show that the dismissal was due to completion of the 251 Program.


Even though this was your first offense, the 251 Program and its requirements can also possibly be avoided with legal help. Consulting with an attorney could be what makes the difference for you and your future.


How The Charges Could Be Fought


When you call Attorney Joseph Yoon at Yoon Law Firm in Fairfax, VA for a free consultation, you will be walked through the various grounds on which the charges can be argued against. If more than one of these factors exist in your case combined, than it can be difficult to overturn a conviction. However, you can not be found guilty of possession of marijuana beyond a reasonable doubt if there are only one of these factors against you:


  • If you are just the owner/occupier of the vehicle or property where the marijuana was found
  • The physical proximity of the marijuana alone
  • If the officer believed you failed to look surprised when the marijuana was discovered
  • If you refused to consent to a search

When some of these factors are combined, in addition to a multitude of other factors in your case, legal consultation may be the path towards the best outcome for your situation.


Although an increasing number of states are recognizing marijuana as a legal substance, it is still a crime in the Commonwealth of Virginia. Until it is legalized here, a guilty conviction of marijuana related offenses can still have implications on your life outside of penalties such as affecting employment opportunities, suspension of drivers license for up to 6 months, and a permanent criminal record. Don’t risk settling for a conviction; call criminal defense attorney Joseph Yoon.