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  1. #1

    Default Drugs and Paraphernalia Found in My Car After a Traffic Stop

    My question involves criminal law for the state of: Virginia

    I was charged with first time possession of marijuana(18.2-250.1) and failure to obey highway sign(46.2-830)

    After a long 4 day weekend in Ohio at the Cleveland Clinic meeting with multiple doctors, including testicular cancer specialists. I returned home to Bealeton, Virgina late on Sunday night. I left in a hurry around 6:40am Monday morning, heading to work in Woodbridge, Virginia (that’s about an hour, fifteen minute drive). I was driving North on HWY28, slowing down to make a right turn onto midland road, I observed a k-9 police unit in my rearview mirror traveling South on HWY28 make an illegal u-turn shortly after midland road (I suspect the officer observed me using my electronic cigarette, as it makes a very thick vapor cloud upon exhale). As I reached the train tracks about an 1/8 mile down midland road I observed the police officer make a right onto midland road behind me. About another 1/8mile later, he was right behind me with his lights on, signaling me to pull over. I pulled over to the right just past Rouges road. The officer approached the drivers side window and asked for my license and registration. I handed it to him as he asked if i knew what I had done wrong. I told him that I did not. He told me he clocked me doing 65 in a posted 45. He then pointed to my passengers front seat, and said "whats that". I said "whats what?" as i looked over. he said "that metal thing on the seat," pointing to a red metallic cylindrical object half tucked underneath some clutter on the passengers front seat. I said "I dont know what that is." he then took a step back and said, "go ahead and step out of the vehicle for me." I said, "yes,sir" and stepped out of my drivers door and walked around the back of the car where he pat me down and asked if there was anything else he should know about. I told him about my pistol in the trunk, unloaded and in its case, and the 2 boxes of ammunition behind the drivers seat on the floorboard. I then leaned against the front of his patrol car as he searched the rest of my vehicle. He found a glass pipe with residue and an empty container with residue both behind the passengers front seat in the back pouch. The metal object (herb grinder) on the front seat ended up having less than a gram of marijuana in it. I had no knowledge of the marijuana, grinder, pipe, or container being in my car since I had not had possession of my vehicle for over 4 days. I suspect that the marijuana and stuff belongs to my sibling, whom has his medical marijuana card for anxiety in the state of California. I cannot lose my license or have any restrictions that would cause me to lose my job, certifications, and disability, so I cannot take the first time offense plea. My job randomly drug tests. i have been recovering from surgery and back and forth to many doctors so i have not had much time this. the case was continued from last month to this Thursday the 9th. Should I plea not guilty and let it go to trial or do I have a chance of getting the charges dropped???

    i am going to schedule a free consultation first thing in the morning but i am not sure whether to hire him for the hearing or when i go to trial... its hard getting an honest opinion without shelling out the cash up front lol(i know the deal, i don't fix cars for free) here's my basic idea of what i need to do/say. please bare with me!

    Possession of Marijuana Defense

    - I am a career Automotive Technician and have years of schooling and tens of thousands of dollars invested in degrees and certifications in my field.

    - My employer executes drug tests upon initial employment, after an accident, and at random.

    - I am recently on short term disability, following the removal of my right testicle. The use of illegal substances would result in loss of employment, benefits, and certifications.

    - I was out of town the 4 days prior to the date in question and the vehicle is frequently borrowed by close friends and relatives.

    move to Drop the criminal charges! (18.2-250.1 Possession of Marijuana)

    - There are no facts or evidence (odors) implicating my knowledge in the nature and character of the contraband found in the vehicle.

    - Ownership or occupancy of the premises where the contraband is found does not create a presumption of possession.

    - There was no reason for me to be able to recognize the nature or legality of the contraband due to my lack of knowledge in marijuana use or culture.

    - Mere proximity to the contraband is not sufficient to prove constructive possession.

    - There is a lack of evidence proving actual or constructive possession of the contraband.

    - The Commonwealth will be unable to prove, beyond a reasonable doubt, that I was aware of the presence and character of the contraband, and that the contraband was subject to my domain and control.

    so basically...

    1st step - move to drop all charges based on lack of evidence of "knowingly possessing" contraband

    2nd step - move to have charges dropped to possession of paraphernalia.(wont effect my license)

    3rd step - go to trial. force prosecution to prove, without a reasonable doubt, that I knowingly and willingly possessed marijuana

  2. #2
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    Default Re: 23yo First Time Possession in Fauquier County. Cannot Get Charged, Need to Fight

    I suggest HIGHLY that you get a lawyer if you plant to NOT take the ASAP first offenders program. You can't just "move to drop the charges" or "change them" prior to the actual appearance in General District Court. You can try to make your case with the Commonwealth's Attorney in advance, but your arguments aren't particularly compelling..."I didn't know the drugs are there" isn't likely to sway him.

    There are other things a lawyer can look at in the situation (which you were unable to fully relate here and perhaps can not because it would involve discovery of what the officer thought or observed) that may also provide a better defense than the "I didn't know it was there" dodge. While you are correct that they need to show you "knowingly" had constructive possession, arguing that something that is sitting on your front seat is not there with your knowledge is going to be hard.

    A lawyer would be a very good idea.

  3. #3
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    Default Re: Drugs and Paraphernalia Found in My Car After a Traffic Stop

    Quote Quoting patrickburns681
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    I suspect that the marijuana and stuff belongs to my sibling, whom has his medical marijuana card for anxiety in the state of California.
    You suspect? So when you asked you brother if it was his, he said "No"?
    Quote Quoting patrickburns681
    Should I plea not guilty and let it go to trial or do I have a chance of getting the charges dropped?
    The defenses you are trying to raise are not at all likely to convince a prosecutor that you're not guilty. "Somebody else must have put these drugs in my car" is not a novel defense. "I don't know who did it," is not convincing -- drug users are actually pretty good at keeping track of their drugs and paraphernalia.

    The first three points in your "possession of marijuana defense" are not relevant to the case.
    Quote Quoting patrickburns681
    I was out of town the 4 days prior to the date in question and the vehicle is frequently borrowed by close friends and relatives.
    That argument does not mean either that the drugs and paraphernalia were not yours or that you were unaware of their presence, even if you let the entire city use the car when you're out of town.
    Quote Quoting patrickburns681
    - There are no facts or evidence (odors) implicating my knowledge in the nature and character of the contraband found in the vehicle.
    While of themselves your ownership of the car and presence in the vehicle are insufficient to create a presumption of possession, Virginia Code, Sec. 18.2-250(A), they are nonetheless evidence that can support the prosecutor's case, along with the fact that the grinder within your line of sight and all of the items were within an easy range of access.
    Quote Quoting Dodd v. Commonwealth, 50 Va. App. 301, 649 S.E.2d 222, 224 (2007).
    Nevertheless, proximity to the contraband or occupancy of a vehicle in which the contraband was found is a factor that may be considered in determining whether a defendant possessed the contraband, see Drew, 230 Va. at 473, 338 S.E.2d at 845 (citing Code § 18.2-250); Brown v. Commonwealth, 15 Va.App. 1, 9, 421 S.E.2d 877, 882 (1992) (en banc), whether for purposes of proving probable cause or proving guilt beyond a reasonable doubt.
    Quote Quoting patrickburns681
    - Ownership or occupancy of the premises where the contraband is found does not create a presumption of possession....

    - Mere proximity to the contraband is not sufficient to prove constructive possession.
    But your ownership of the vehicle, and your exclusive control and possession of the vehicle and its contents, are facts that support an inference that everything in the vehicle was yours:
    Quote Quoting Archer v. Commonwealth, 26 Va.App. 1, 492 S.E.2d 826, 831 (1997)
    Although mere proximity to the contraband is insufficient to establish possession, it is a factor that may be considered in determining whether a defendant possessed the contraband. See Brown v. Commonwealth, 15 Va.App. 1, 9, 421 S.E.2d 877, 882 (1992) (en banc). Ownership or occupancy of the premises on which the contraband was found is likewise a circumstance probative of possession. See Drew [v. Commonwealth], 230 Va. at 473, 338 S.E.2d at 845 (citing Code § 18.2-250).
    Quote Quoting patrickburns681
    - There was no reason for me to be able to recognize the nature or legality of the contraband due to my lack of knowledge in marijuana use or culture.
    If you go to trial you can try to convince the jury that you wouldn't recognize a grinder or drug pipe if you saw them, but I think it would be a tough sell. Besides, if your argument is "I didn't know they were present", it doesn't matter whether or not you would have recognized them had you seen them.
    Quote Quoting patrickburns681
    - There is a lack of evidence proving actual or constructive possession of the contraband.
    Quote Quoting Walton v. Commonwealth, 255 Va. 422, 497 S.E.2d 869 (1998).
    Constructive possession may be established when there are "'acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the [accused] was aware of both the presence and character of the substance and that it was subject to his dominion and control.'
    The grinder was visible on your passenger seat. I don't think it's credible that you would not have recognized the pipe, found in the pouch behind the seat, for what it was. You had exclusive possession and control of the vehicle, and thereby had exclusive possession and control of all of its contents. That's more than enough to get the matter to a jury.
    Quote Quoting patrickburns681
    - The Commonwealth will be unable to prove, beyond a reasonable doubt, that I was aware of the presence and character of the contraband, and that the contraband was subject to my domain and control.
    You're entitled to hope that the jury believes you, but the Commonwealth has more than enough evidence to get the case before a jury and to support a conviction.

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