Non-U.S. citizens: To request a marijuana lab test, or not? How else to prove weight?
Criminal convictions and sentences can be fraught with immigration land mines for non-United States citizens, and also with land mines for United States citizens wishing to travel abroad. For instance, and counterintuitively, a drug paraphernalia conviction can be more of an immigration kiss of death than possession of thirty grams or less of marijuana. For more on that, see here.
If a non-United States citizen is convicted of possessing marijuana, it is critical that the court record reflect that the quantity was thirty grams or less. In Virginia, the court file will not ordinarily state the alleged marijuana weight for a case of simple marijuana possession. Police reports estimating weight are not automatically in the court file. Moreover, in Virginia, the state drug lab will not test alleged marijuana for simple possession cases absent a court order, instead relying on the statutory provision covering police field testing of alleged marijuana. Of course, allowing such field testing to prove beyond a reasonable doubt that the substance is marijuana, is a due process and Constitutional outrage, risking too much that there will be false positive drug field testing results.
Here are some ways, for immigration purposes, to establish that the marijuana quantity is thirty grams or less, in the event of a conviction:
– In Virginia, the defense may opt to request a judicial order to have the alleged marihuana tested (and, by default, then weighed) by a state chemist. Doing so, though, takes away my ability to attack the drug field testing performed by the police officer. If a chemist report is generated in this fashion, it will become part of the court file.
– Always get an official court reporter to record the police officer’s testimony about alleged quantity.
-Consider asking the police office on cross examination to estimate the weight of the alleged marijuana, or to get a prosecutor’s stipulation to the weight being thirty grams or less, whether or not the conviction results from a guilty plea or trial. The downside to such a line of cross examination is that the larger the marijuana quantity, the harder it is to argue that the defendant was not aware of the presence of the alleged marijuana. Larger marijuana quantities are more likely to be seen or smelled than smaller quantities.
– Ask the judge to mark on the case disposition sheet that the quantity was thirty grams or less. However, the judge might less willing to do so if the judge does not see the alleged marijuana, and the actual seized marijuana is not always brought to court, or if the judge does not want to seem to have past personal experience smoking marijuana.
Let us have marijuana decriminalized and legalized everywhere so that the concerns raised in today’s blog entry become obsolete.