Get the REAL story behind Virginia’s MARIJUANA laws

Along with some helpful “Do’s” and “Don’ts” from a Fairfax Criminal Defense attorney

Avoid a potentially life-changing conviction

Based on my 15 years of experience as a criminal defense attorney in Fairfax, I’ve found that most marijuana investigations begin just after a client gets pulled over for a simple traffic infraction, like rolling through a stop sign, speeding, or having window tint that exceeds the legal limit.

Sometimes the marijuana is discovered when a cop rolls up on a small group in a Fairfax County park after dark. This brings us to “Don’t” number 1:


…have marijuana in your possession in a park after dark.

Parks are closed at dusk in Fairfax County. Just by being in the park after dark you are “Trespassing.” When a cop discovers you, he will likely issue you a summons. This can (and often does) lead to an eventual, and legal, search of you, your friend(s) and your vehicle(s). If you possess or use marijuana, DON’T do it in a park after dark.


Let’s say that, like in most cases, you’ve been pulled over for some traffic infraction.

The cop walks up.

You roll down your window…and at some point the cop begins asking you questions like,

“Is there anything in your car that I should know about?” or

“Is there a reason I smell marijuana in this car?”

Let’s face it: The stuff has a pretty strong smell, right? This brings us to “Don’t” number 2:


…say “Oh yeah, officer, I’ve got some weed in my car.” First, under Virginia law, you are not under arrest at this point. It is still a “traffic stop.” That means the cop doesn’t have to tell you that you have a “Right to Remain Silent”


Say nothing. Unless there’s a bag of weed in plain sight, you retain “plausible deniability” regarding whether you had any knowledge that marijuana is or was in the car.

Why is this true?


In today’s day and age, we all let others drive our cars and we’ve all had passengers in our cars. People leave things in each other’s cars. It’s a fact of life. According to Virginia law, just because something is in your center console, glove compartment, inside your door pocket, your trunk or in a backpack in the backseat does NOT mean that you knew it was there. The cop has no idea who has ever driven the car or who was in it just before he stopped you. And he’ll only know this if you tell him. So DON’T admit to anything.


The cop may ask you if he can search your car. Remember, in the eyes of the law this is still a “traffic stop”. You have the right to decline his request. This brings us to our first “DO”:


…politely decline the officer’s request to search your vehicle.

This doesn’t mean that he won’t search the car.

He probably will.


You have a Constitutional right against unreasonable searches and seizures. Is this search “unreasonable”? We don’t know yet. A good lawyer will eventually figure that out. But remember that saying, “Just say no”? Well, that applies to a cop’s request to search for drugs as much as it does to anyone considering using drugs. If you already “Got Pot,” then it’s still time to “just say no” to the search for it. You have the right to “just say no” and by asserting that right you are preserving a chance for your lawyer to get the case thrown out in court. If you “just say yes” to the search you may be waiving those rights and limiting your lawyer’s options in court.


Now you’ve been polite, declined the cop’s request to search, and he still asks you to step out of the car so he can search. What next? Another “DO”:


…step out of the car and DO remain polite to the officer. There’s no need to argue, beg or plead with the cop at this point. There’s every need to be calm, polite, and QUIET. Now the waiting begins as he opens every door, looks under every seat and, perhaps, even pops the trunk. Eventually, he returns to you and he’s holding something that you recognize or maybe even don’t recognize. Again, a “DON’T”:


…admit to anything! At this point, in Virginia, a reasonable person, in this case, “YOU” would not feel “free” to walk away or otherwise leave the area. Under Virginia law, you are now, effectively, “seized” by the officer. He’s going to ask you a question like,

“Is this yours?” or

“Do you know what this is?” or

“Do you want to tell me about this?”

These questions, calculated to elicit incriminating responses, can be considered “Interrogation.” Whether the cop warns you of your “right to remain silent” or not, the most effective response at this point is “I have nothing to say without first speaking to a lawyer.” SAY NOTHING FURTHER.


Now you’re thinking, “If I just admit to it maybe he’ll let me go” or “I don’t want to piss off the cop, so maybe I should just confess.” Well…

First, he’s not going to let you go.


Full stop.

Don’t even think about it.

It’s not going to happen in Northern Virginia.

Second, up to now, all the cop can prove is that there was marijuana in your car. But the issue isn’t whether your car knew marijuana was in it. Virginia law requires proof that YOU knew it was there, that YOU had control or “dominion” over it and YOU knew what it was. Again, only YOU can give this evidence against YOURSELF.

Your car is not going to be a witness against you.

What ever YOU say at this point (other than requesting an attorney) can and WILL BE USED AGAINST YOU.

Know this:

If a cop finds pot in your car, you are going to get a summons. You MAY even be arrested –although it’s hardly likely if this is your first offense. But without proof of your knowledge, without your confession, the case will be extremely hard to prove “beyond a reasonable doubt.”


You didn’t consent to a search but the cop still searched.

You didn’t admit to knowing about the weed but the cop still charged you.

Now you have to go to court.

You can probably guess what the next “Do” is:


…meet with an experienced criminal defense lawyer, DO remain confident about the strengths of your case and hire him or her to fight for your rights and to keep your record clean. If you were polite to the cop, made no admissions, and if the marijuana was not found in plain sight, only a lazy lawyer will start convincing you to plead guilty from day one.

Unfortunately, many lazy lawyers value their relationships with prosecutors over their client’s. Time for another “Do”:


…run away from lazy lawyers.

DO hire a criminal defense attorney who can show you the path to a “Not Guilty” verdict based on the facts of your case.

DO get a lawyer who is dedicated to fighting FOR you, NOT for himself.

Regardless of the facts of your case, the lazy lawyer will immediately steer you toward taking a “program” that will get the case “dismissed.” Guess what. If this is your first offense, you will be eligible for that same “program” EVEN IF YOU TRY THE CASE AND LOSE.

Those $395 lawyers can only keep their lights on and keep their staff paid if they keep spending as little time in court as possible and keep spending more time in their office signing up more $395 clients.

That’s the “Costco” approach to legal services.

It’s impersonal.

It’s warehousing clients.

It’s cold and profit-driven.

You deserve better.

As I was saying,



…expect your criminal defense attorney to help you win the case, outright. Expect him or her to focus their every effort on preparing your case for trial and executing that trial effectively. Your record, your reputation, and your self-respect demand nothing more than the strongest defense possible when your future may be at stake.



Call The NoVa Law Firm for the solid, experienced legal representation you deserve!

Speak with a Fairfax criminal defense attorney today.

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About the Author: Eric Clingan

About the Author: Eric Clingan

Eric Clingan is an experienced Criminal Defense attorney and the founder of the NoVA Law firm. He focuses his practice on defending residents of Northern Virginia charged with DUIs, reckless driving, drug charges, and other criminal accusations

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