Marijuana arrest rates increase: Options available for the accused

The Federal Bureau of Investigation (FBI) reported 663,367 marijuana related arrests in 2018. Of these, over 90% were for mere possession of marijuana. These numbers are an increase from the reported 659,700 arrests in 2017 and 653,249 in 2016.

With more and more states throughout the country passing laws to legalize marijuana, it may seem surprising that the arrest rates throughout the United States continue to increase. Recreational marijuana is currently legal in Colorado, Washington, Alaska, Oregon, Washington, D.C., California, Maine, Massachusetts, Nevada, Michigan, Vermont, Guam and Illinois. However, it is important to note that although a growing number of states are passing more lenient marijuana-related laws, neither the federal government nor the Commonwealth of Virginia has made any significant changes to the law as it applies to possession of marijuana. As a result, the possession, purchase and sale of marijuana are still generally illegal at both the federal level as well as in the Commonwealth of Virginia.

What options are available for those accused of a marijuana-related crime? 

Whether facing state or federal charges, those who are accused of a marijuana-related crime are wise to take the matter seriously. When initially facing accusations, it is wise to seek legal counsel who may be able to help you build a defense to the charge(s). Examples can include:

• Illegal search and seizure. The Fourth Amendment provides protection against an illegal search and seizure by state or federal law enforcement, and the police cannot search your home or vehicle without following certain protocols. A failure to follow constitutional rules can result in a ruling that any evidence found during an illegal search is generally inadmissible in court.
• False identification. What looks like a drug, may not be a drug. In 2012, a Kansas couple was subject to a raid after a substance police thought was marijuana was found in their garbage. After further review, it turned out the supposed marijuana was tea.
• Drugs are missing. To establish the accused had drugs in his or her possession, the prosecution must have the drugs as evidence and normally those drugs need to be tested in some manner. It is not uncommon for the drugs to go missing. This can sometimes result in dropped charges.
• Medical use. Although still not legal at the federal level, many states (including Virginia) allow for the use of marijuana for medicinal purposes. Please note that Virginia does not permit “medical marijuana” for everything and the “authorized” uses are still limited. Normally, those persons who plan to use this defense generally need to present a valid prescription that is signed by a licensed doctor to support their claim.

Both the federal government and the Commonwealth of Virginia have other options available for individuals who have not been previously charged with or convicted of a drug offense, however, those options will not be discussed in this article. Further, it is important to note that neither the federal government nor the Commonwealth of Virginia permit expungement for persons who are convicted of a criminal offense or who enroll in a “first offender” disposition. Please make certain to contact competent legal counsel to determine the best option(s) for you.