Fairfax County Possession of Marijuana First Offender Program
Common Questions Regarding the 251 First Offender Program Answered by Virginia Criminal Defense Attorney Justin Ervin
What is the 251 First Offender program?If you have been charged with possession of marijuana in Fairfax County, it is critical that you read up on your rights, the penalties that are potentially associated with possession of marijuana in Fairfax, and whether the first offender diversion program is a good option for you.
As you search the internet for information relating to your possession of marijuana charge, you will inevitably come across information relating to the 251 program. This diversion program provides a first-time possession of marijuana defendant with a path to have the charge dismissed if (and only if) the defendant complies with several conditions.
First and foremost, the 251 diversion program is not a bad option for all defendants. In fact, for many first offenders it may end up being the best option. However, if your specific case has a legitimate legal defense (for instance, it wasn't yours, you didn't know that it was there, you were improperly stopped, etc.), then you would be better served by fighting the charge in court rather than just accepting a 251 diversion program. The primary reason for this is that even though the 251 program will ultimately result in the dismissal of your possession charge if you comply with the terms of the program, the charge cannot be expunged and will remain on your record (as a dismissal). The only way to be sure whether the 251 diversion program is a good option for you is to discuss your case with a Fairfax criminal defense attorney.
As you consider whether to accept the 251 diversion program, review the following information regarding how the program works and what the lengthy requirements are.
Step 1: The InterviewIn Fairfax County, all defendants who are eligible for the 251 program are asked by the judge if they wish to be interviewed by the VASAP present at court as a prerequisite for the 251 program. During that interview, if you are found eligible and you decide that you do want to enroll in the program, you will be provided a form that informs the judge that you are going to accept the 251 disposition.
Step 2: Entering Your PleaIn order to enroll in the 251 first offender program, you are required to plead "no contest" or "guilty". However, although you are making that plea in court, the judge does not enter a finding of guilty at that time. Rather, the judge waits to enter a judgment for 1 year to allow for either completion of the terms of the program, or if you are unsuccessful in the program then the judge will enter the guilty verdict and impose sentencing.
Again, It is important to understand that the judge will find that the facts are sufficient for a finding of guilty. This finding is important because a dismissal pursuant to this section means that the charge is not eligible for an expungment under Virginia Code Section 19.2-392.2. Furthermore, if you are not a U.S. Citizen, you should consult an immigration attorney before proceeding with this disposition because it is possible that a dismissal under this law section could be seen as a conviction for immigration purposes.
Additionally, some employers, educational institutions, and security clearance providers consider a 251 dismissal the same a conviction because it requires a defendant to plead guilty (even though that plea is not entered as a judgment if you successfully complete the terms of the program). If you are concerned about the effects of a conviction on your work, security clearance, or schooling opportunities, then talk to an attorney immediately.
The 251 program also requires the defendant to acknowledge that any violation of the probationary terms and conditions is grounds for a finding of guilt by the court. So if a defendant enters the 251 program and then violates the terms of probation, they will not have a chance to fight the charges. Once a defendant enters the program, they must complete the program or they will be convicted and punished.
Step 3: Mandatory License SuspensionA statutorily required element of the 251 program is that your drivers license will be suspended for a period of 6 months. You may have heard about recent changes in Virginia's marijuana laws that no longer make the suspension of driving privileges required, but that charge does not apply to the 251 program. It is important to understand that if you decide to enroll in the 251 program, your driver's license will be suspended effective that day.
However, you may be eligible to request a restricted license to permit you to drive to and from work and school, during work hours, for issues pertaining to your children, and for medical purposes. This too is discretionary and the judge does not have to permit you to drive at all. Consequently, it is recommended that you do retain the services of a lawyer if you are going to need to request a restricted license because it is a request that the judge has complete discretionary authority over.
Step 4: Complete VASAP RequirementsThe Virginia Alcohol Safety Action Program is key to the 251 diversion program in Virginia. Everyone who chooses to enter the 251 program is required to enroll VASAP within a matter of days and then complete the VASAP program over the course of the next year. Specifically, VASAP has designed a program tailored to first offenders that involves education, rehabilitation methods, and treatment.
VASAP costs $350 at the time of enrollment, and there are 10 weeks of classes (2 hours per week) that must be completed successfully and on time. During these 10 weeks, you will be drug tested and, of course, must pass those tests. Additionally, VASAP can require more a intensive program if it deems it necessary.
You are also required to complete 24 hours of community service as a condition of VASAP.
Step 5: CompletionAfter 1 year, if you have completed all of these terms, successfully completed the VASAP course, and completed your community service, then the possession of marijuana charge will be dismissed. It's a long process from beginning to end, but if your case lacks a strong defense, it is one way to have the charge dismissed. That said, it is still strongly recommended that you always speak to an experienced possession of marijuana lawyer before you decide whether or not to accept the 251 program offer.