Weisberg Law Blog

Marijuana Cases II

This is my second note about marijuana cases. No matter what our personal opinions, marijuana is still illegal. In Virginia, simple possession is a misdemeanor. First offense carries up to 30 days jail. A second or subsequent offense is punished as a class one misdemeanor, with up to 12 months jail and a $2,500 fine.
Recently, I won a case on technical issues. In order to convict a person of this offense, the Commonwealth would be required to show that the substance in question is, indeed, marijuana. Seems logical, right?  In the past, the item had been sent to the State lab for analysis by a scientist. In the real past, pre 1975, the chemist actually came to court to testify. How quaint. The first change was to have the chemist complete a certificate saying it was m/j and file that with the Court trying the case. If the accused wished, he could subpoena the chemist to Court.
Recently, the law was changed again. The lab was too busy (er, not enough State Chemists.. don't pay enough to attack chemists). To solve this problem, police officers use a "kit" approved by the State Dept. of Forensic Sciences to test the substance. If the test determines it's m/j, the arresting officer can testify to the result, but the accused must be allowed to request a State Lab test at anytime prior to trial. However, I noted that the "kit" had to be approved. In my case, the officer merely testified that the substance tested as m/j using a "kit." However, he never said that the "kit" had been approved. This failure required the Court to dismiss the charge because there was no proof that the substance was m/j.  As I have said before, you never know where your wins come from. My client was stunned; he thought he was due to be convicted.
I understand that the Courts in Virginia Beach (General District) allow this to be shown by the "expert testimony" of the officer. No chemist, no "kit" is needed. Evidently, this is a technicality that they can ignore.
As I have said before, your lawyer needs to be on his toes in this business.

Labels: criminal attorney drug charge marijuana criminal marijuana lawyer marijuana offense