Alternative Programs And Common Defense Strategies
Are There Any Alternative Programs In Virginia For First-time Offenders?
There is what is commonly referred to as a 251 disposition as it’s outlined in Virginia Code section 18.2-251. It provides that someone who has not been arrested or charged before with a drug charge and they are arrested on a first offense drug charge, such as the possession of marijuana or possession of cocaine, the court can allow that person to enter into a first offender program. It requires a person to complete community service and a substance abuse education course.
Typically, people will take the Alcohol Safety Action Program (ASAP). It’s required after a conviction for DUI in Virginia but a component of the ASAP course does cover substance abuse in all forms. It covers a suspension of the person’s privilege to drive or their Virginia driver’s license for six months, payment of court costs as well as he or she must remain on general good behavior for a specified period of time.
In some jurisdictions in Virginia, the period of time is only six months. In Fairfax, people typically see that a lot of the judges will do six months. In Arlington and Alexandria, the requirement is 12 months and in some jurisdictions, you see it varies depending on what agreement you can reach with the prosecutor and the judge. However, if the person is successful in completing that community service, maintaining general good behavior or completing the education course, at the end of that probationary period, the charge against them will be dismissed and they will not have any conviction. Since it is a first-offender program, you only get one bite at that apple.
There are also some jurisdictions in Northern Virginia that have what are called drug courts. This is an alternative program and it is not necessarily for a first offender as much as it’s for repeat offenders, or people that have substance abuse problems.
Some jurisdictions here have set up courts unique for people with substance abuse issues in order to avoid the repetitive cycle of the person being put in jail, not receiving any treatment for their substance abuse, getting back out or going back to using illegal substances and put in jail again. The drug court is like an intensive probation. The group typically meets every week, but you also have a particular judge. In a suspended drug court, you have a requirement that you have to fulfill.
These requirements include maintaining employment, staying in school, drug screens, different projects that you have to do, etc. You’re held accountable for those things. Each week if you don’t meet one of those requirements, there are immediate sanctions, meaning you can immediately be placed in jail, you can immediately be removed from a program or things of that nature.
The drugs courts in Northern Virginia are fairly new but they have them statewide and they have a lot of success with them. That’s another alternative for folks that come frequently before the court dealing with a drug case.
What Are Some Common Defense Strategies Used In These Types Of Cases?
A common defense strategy is to attack the knowledge element of the crime. In a scenario where a car is pulled over and there are four passengers in the car and one person has drugs on them, or the car smells of marijuana and the police find drugs in the center console or under the floor board, a lot of times the biggest attack to that is whether or not the government can prove that our client knew of the presence of the drug or substance and that they could exercise any kind of dominion and control over it.
There is also the defense of accommodation. This is an affirmative defense that requires the defendant to show that the distribution of a drug was not done for any monetary benefit to the defendant. The defense of accommodation reduces the level of the felony offense and leads to a reduced punishment range.
We frequently attack cases related to search and seizure issues. Most drug cases seen on the state level start from traffic stops or consensual encounters in the community. While the police may feel on the scene that they have probable cause to search a person, a car, or a residence – the court may deem that search violated the protections afforded to the defendant by the law. It is important that defense counsel review every police encounter and file a suppression motions when there is a question of illegality. Prevailing at a suppression motion may end the government’s case against a defendant without the need for a trial.
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