Virginia 251 dispositions for drug and marijuana possession are not necessarily the panacea that numerous police, prosecutor and judges elevate them to be. Talk is abuzz about a July 1, 2017, Virginia law change that no longer requires a judge to suspend one’s driving privileges for marijuana 251’s if the judge exercises the option to more than double mandatory minimum community service from 24 hours to 50 hours. Va. Code § 18.2-251.

Before a criminal defendant can obtain a first-time drug possession dismissal under Virginia Code § 18.2-251, s/he must first successfully complete probation (which includes not committing crimes during that period, and following the specific probation conditions), complete a drug education program, clean out the urine for periodic drug testing, and perform the court-designated hours of community service. On top of that, a non-marijuana 251 disposition for six months limits driving eligibility to narrow restricted driving privileges. If probation is deemed violated by the judge, the court can impose a guilty verdict and sentence for up to the maximum possible sentence, which is up to ten years in prison for drug possession and up to thirty days in jail for marijuana possession.

Yes, avoiding driving suspension for a marijuana 251 disposition is an improvement over mandatory suspended driving, but a 251 disposition remains not the panacea that some might claim. A 251 disposition can still be a scarlet letter for employment, can still trigger a probation violation for any probation that existed at the time of the 251-triggering incident, is treated as a conviction for security clearance purposes, and is a conviction for immigration purposes if it follows a guilty finding, guilty plea or nolo contendere/no contest plea rather than a finding of facts sufficient to prove guilt.

By looking at the court’s online docket or physical file, not all potential employers and others will know that a dismissal arose from a 251 rather than an unconditional dismissal. The imposition of court costs, though, means that the dismissal arose from a 251 disposition. Security clearance reviewers and immigration authorities will easily ferret out the 251 disposition.

Consequently, when a prosecutor promotes a 251 disposition to me, I explain how a 251 disposition can be harmful to my client’s career or other important life opportunities in working to negotiate for a better result. When a 251 disposition is the only plea offer, I advise my clients of the chances of obtaining a 251 disposition, anyway, from simply going to trial if not acquitted. Rushing into a 251 disposition does not make sense if negotiating or going to trial — or at least waiting until the trial date to see if the prosecutor’s witnesses are available then — might bring a better or no worse result.

In Fairfax and other courts, I see too many Virginia marijuana defendants entering the 251 program without a lawyer. Yes, hiring a lawyer is not cheap. However, if that lawyer can obtain a better result than a 251, that investment in the lawyer will have been worthwhile. I am saying this not to encourage people to hire me as their lawyer, but because the difference between hiring a qualified lawyer for criminal defense and going to court alone can spell drastic differences in case outcomes.

Legalize marijuana and heavily decriminalize all other drugs. Until that time, fight tooth and nail against this and all other criminal prosecutions.

Jon Katz became a criminal defense lawyer in 1991 when, previously with a corporate law firm, after a series of events that included a flashpoint of taking out a subscription to High Times magazine in protest against a federal prosecutor’s subpoena of the magazine’s advertiser records; meeting then-director of the National Organization for the Reform of Marijuana Laws Don Fiedler after his interview in High Times; and finding his way to becoming a public defender lawyer for five years before returning to private law practice, partly with the advice of  Don. To meet with Jon about your case, please contact his staff at 703-383-1100, katzjustice.com