Arrested or cited for possession of what may or may not be (allegedly) marijuana? Fear not.
Police currently lack a field test that can differentiate between lawful industrial hemp and illegal marijuana AND it appears lab testing is not any better. Why all of a sudden? Because Hemp is now legal in Virginia and most hemp has some level of THC and smells identical to marijuana. No telling the difference.
The Virginia Department of Forensic Science is the agency responsible for certifying what is standardized testing for controlled substances in Virginia. According to the Virginia Department of Forensic Science it seems unlikely that they will have a reliable field test any time soon to test the difference between marijuana and hemp.
What does this mean for marijuana charges? Someone charged with an alleged illegal possession of marijuana, with the proper argument, the case has a high likelihood of dismissal, if and when the Commonwealth decides to rely on the field test alone. The Commonwealth 90% the time, if not more, relies on field tests alone for these charges. They cannot appeal dismissals from General District Court. An experienced criminal lawyer, like Cerid Lugar, can through certain procedural and legal arguments can navigate the process to argue the charge has to be dismissed.
It is the prosecutor?s burden to prove their case beyond a reasonable doubt. When the agency in Virginia (DFS) has determined there does not exists reliable test for marijuana, how can the prosecutor gain a conviction for the charge? The simple answer is they should not, the case should be dismissed.
A lawyer at Lugar Law knows the weaknesses in the field test kits, knows that the prosecution bears the burden to prove its case that you possess illegal marijuana versus hemp, and knows how to help you avoid the Class 1 Misdemeanor under Va. Code ? 18.2-250 conviction. Attorney Cerid Lugar knows the right questions to ask and the right arguments to make.
The elements of a marijuana charge are the following. The prosecution must prove that you knowingly or intentionally possessed a controlled substance (marijuana versus hemp), that the control substance is marijuana and not hemp. In order to prove that a substance is illegal marijuana and not hemp, the police and prosecution must send the suspected marijuana to a lab in Richmond at the Virginia Department of Forensic Science for testing. The Department of Forensic Science has stopped a policy of testing substances suspected of marijuana so that appears to be out of the picture and it is unclear that even their official labs can distinguish between the two substances: marijuana versus hemp. To put succinctly, it is not clear that the lab could differentiate between hemp and marijuana.
Prior to the passage of Industrial Hemp Act (Va. Code ? 3.2-4412) and amending of the Drug Control Act (Va. Code ? 5.4-3400 et seq.), police could be sure that their field tests could accurately and reliably test a substance and determine if it is marijuana as hemp was not legal. Under the passage of these new laws, police field test kits are worthless, they cannot tell the difference between lawful industrial hemp products and illegal marijuana.
In order to successfully prosecute someone for illegal possession of marijuana, every substance suspected of being illegal marijuana must be sent to a lab in Richmond for testing. Even more importantly, any testing results must indicate the concentration of THC, which is the only way to tell the difference between lawful hemp products and illegal marijuana ? and there is an argument that the person knowingly possessed marijuana product versus a hemp product (also known as a constructive possession argument). As it stands, the Department of Forensic Science cannot reliably and accurately test for concentration levels of THC.
Further, Virginia has the toughest expungement laws around and relying on the case being expunged at a later date is not a risk you should take when you have such strong arguments against the conviction in the first place. The risk is not worth it.
That means you need a skillful lawyer, like an attorney from Lugar Law to present these issues to the Court and help keep the Class 1 Misdemeanor of Illegal Possession of Marijuana off your record. It is important to understand that despite the change in attitude towards marijuana, marijuana is still a class one misdemeanor in Virginia and is not expungable (meaning cannot be suppressed from your record).
