Marijuana: Possession vs. Possession with Intent to Distribute

The simple possession of marijuana may no longer be a crime in Washington state or Colorado, but it remains a criminal offense in Virginia. Furthermore, there is a clear line in the sand across which simple possession of marijuana becomes possession with intent to distribute marijuana: ½ ounce. Simple possession of marijuana, a violation of Virginia Code Section 18.2-250.1 is a misdemeanor; possession with intent to distribute more than ½ ounce becomes a felony.

If a person is in possession of ½ ounce or less of marijuana, the likelihood is that that he or she will be charged with simple possession. A first offense for simple possession carries a maximum penalty of 30 days in jail, a $500 fine and a 6 month driver’s license suspension. A second or subsequent conviction becomes a Class 1 Misdemeanor, which means that a person is subject to up to 12 months of jail and a $2,500 fine, along with the 6 month license suspension. If a law enforcement officer determines that the possession of ½ ounce or less was with the intent to distribute, it remains a Class 1 Misdemeanor.

However, if a person is in possession of more than ½ ounce of marijuana, the likelihood is that the person will be charged with possession with intent to distribute, a Class 5 Felony, which carries a maximum sentence of up to 10 years in prison.

The facts and circumstances of each case will determine whether the quantity of marijuana is sufficient to convict a person of simple possession or with possession with intent to distribute.

How does a prosecutor prove that a person intends to “distribute, sell, or give” marijuana to another person? Many times, a distribution case is proven through confidential informants, undercover officers, or the use of marked funds through controlled drug buys. Sometimes, a law enforcement officer will witness a transaction in progress. But in the instances where a person is simply in possession of a certain quantity, other circumstantial evidence becomes crucial to the government’s case.

For example, the government will often call a narcotics detective testify about their experience and expertise in the nature of drug distribution versus personal use. This type of witness will usually testify to certain factors including 1) the presence or lack thereof of a smoking device or materials, such as rolling papers, used to create a smoking device; 2) the amount of money, specifically cash, in the possession of the accused individual; 3) the presence of a firearm in the possession of the accused; 4) the manner in which the alleged marijuana is packaged, such as in separate baggies; or 5) the presence of any communication devices, like cell phones or pagers, and any communications contained in them.

Example. Let’s say that a person stumbles out of a bar, attracting the attention of a patrol officer, who then discovers a single bag of marijuana in the person’s jacket pocket weighing approximately one ounce. The person has about 7 dollars in cash, a receipt for a bar tab, a small pipe, and a cell phone with no relevant text messages or voice mails. The quantity alone would constitute grounds under the Virginia Code for a charge of felony possession with intent to distribute. However, the small amount of money, combined with the smoking device and the placement of the marijuana in a single bag, are all factors indicating the marijuana was being held for personal use. The person did not have large sums of money, a firearm, multiple baggies or any communications typically related to drug dealing. While the government may file charges of possession with intent to distribute, the prosecutors would probably be limited to actually proving only a case of simple possession.

The criminal lawyers at Livesay & Myers, P.C. represent clients throughout Fairfax, Manassas, Prince William County, Fredericksburg, Stafford, Spotsylvania, Alexandria, Arlington and all of Northern Virginia on drug charges of all types, including charges of simple possession of marijuana and possession with the intent to distribute. If you or a loved one face a drug charge, contact us to schedule your free consultation with a Virginia drug crimes defense attorney today.