Written by attorney Luke Joseph Nichols

Virginia’s First Offender Diversion Program for Drug Possession (18.2-251)

The vast majority of drug charges are for simple possession by a first-time offender. Most of those possession charges involve marijuana. Many of those defendants will be asked by a judge whether or not they want to enroll in the “251 program.".

The 251 program allows a defendant to have a first-time drug possession charge dismissed so long as they comply with a lengthy and strict set of conditions. While having charges dismissed sounds great, there are many conditions and exceptions attached to the 251 program.

Six-Month Driver’s License Suspension

Defendants who enter the 251 program will lose their driver’s license for six months if they have a Virginia driver’s license. However, Virginia drivers can ask the judge for a restricted license allowing them limited driving to and from work, school, church, medical appointments, ASAP, and a few other possible exceptions. Talk to your attorney about your driving needs and work schedule to find out whether a restricted licensed would be possible or practical. CDL holders will not be issued any restricted driving privledges.

Drivers with non-Virginia driver’s licenses will be banned from driving in Virginia but the Virginia courts do not have the authority to suspend their right to drive outside of Virginia. Out-of-state drivers are not often given restricted licenses by most judges. Out-of-state drivers’ home states can also choose to suspend their right to drive outside of Virginia.

251 Program Requirements

A defendant who enters the 251 program must plead guilty or stipulate that the evidence is sufficient for a finding of guilt by the court. This means that even though your charge may be dismissed later on, entering the 251 program will affect your immigration status if you are not a US citizen and will likely result in deportation despite successful completion of the program. This also disqualifies 251 participants from getting an expungement.

Some employers, educational institutions, and security clearance providers consider a 251 dismissal the same a conviction because it requires a defendant to plead guilty. 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.

Defendants who enter the 251 program agree to allow the proceedings to be deferred and to be placed on active probation with the county Alcohol Safety Action Program for six months followed by another six months of inactive probation.

The terms of the active probation include 10 weeks (two hours a week) of classes but can also include more intensive counseling and even rehab if ASAP determines that such treatment is necessary.

Admission to the 251 program also requires that a defendant keep the court notified if their address changes while on probation. Failure to update your address can cause serious legal problems.

251 program attendees agree that any notice of probation violations can simply be mailed to the address on file as opposed to being served by a sheriff’s deputy.

If a defendant violates their probation, the court can then either fix a time for the defendant to become compliant or set a time for the defendant to be found guilty of possession for non-compliance.

“251" First Offender Program Requirements

· Plead guilty (this can cause immigration problems)

· Be placed on active probation with ASAP

· Pay $350 for ASAP plus court costs and other fees

· Complete the 10-week ASAP program on time

· Pass drug tests during probation

· No drugs or alcohol while on probation

· Suspended driver’s license for six months

· Complete 24 hours of community service

Conditions of Probation

As part of the ASAP program, all defendants must agree to remain drug and alcohol free for six to 12 months. They must also agree to submit to drug and alcohol tests by ASAP. Anyone who admits using drugs or alcohol or who shows up to ASAP classes exhibiting signs of drug or alcohol use will be required to submit to extra tests.

A copy of the 2011 Fairfax County General District Court ASAP order form for drug possession charges is included in this section as a reference. Similar order forms exist for each jurisdiction’s ASAP program.

Defendants who enter the 251 program will be required to complete 24 hours of approved community service and make a reasonable effort to get and keep a job.

If a defendant fails to comply with any of the terms of their 251 probation they can be found guilty of their original charge and punished without an opportunity for a trial.

Effects of the 251 Program on Criminal Record and Immigration Status

If a defendant successfully completes the 251 program, their criminal record will show that their crime was dismissed due to successful completion of the 251 program. A defendant cannot expunge or “seal" the record of their 251 dismissal in Virginia at this time.

If you have a 251 dismissal on your criminal record, law enforcement and other people who look at your complete criminal record will be able to tell that your dismissal was part of the 251 program and not because you were found “not guilty." In the eyes of some people, a 251 dismissal is not the same as a true dismissal.

A dismissal through the 251 program has the same effect on one’s immigration status as a conviction. If you are not a US citizen, a conviction for almost any drug offense (including the lowest form of marijuana possession) can result in deportation. If you are not a US citizen, hire an attorney immediately upon your arrest for any drug crime.

Indicators that the 251 Program May Not Be a Good Idea for Your Case.

Entering the 251 program instead of fighting your charge may not be a good idea IF:

  • · You are not guilty or have good legal defenses. Why go through the 251 program if you are not guilty or if the government has no case? Always consult a competent attorney before agreeing to enter the 251 program.
  • · You cannot afford to lose your driver’s license for six months. Entering the 251 program will result in a six-month loss of driving privileges. Restricted licenses are not always available. If this is unacceptable, talk to an attorney before entering the 251 program.
  • · You may get another drug charge in the future. Most officers, prosecutors, and judges treat a 251 dismissal on your record the same as a conviction. Suspects with a 251 dismissal on their records are less likely to be cut a break by an officer on the street or by a prosecutor or judge.
  • · You may want to do the 251 program in the future. Preserve your ability to go through the 251 program if at all possible as a form of insurance against potential future charges.
  • · You cannot 100 percent abstain from all illegal drugs and alcohol. Defendants in the 251 program will undergo drug and alcohol testing. If you fail these tests you can violate your probation. If you are not 100 percent confident in your ability to stay clean, the 251 program may not be a good idea.
  • · You are not a US citizen. The 251 program can result in your deportation if you are not a US citizen. Talk to an attorney immediately if you are ever charged with a drug crime.
  • · You are on probation. Because entering the 251 program involves admitting that the facts are sufficient to find you guilty, doing so may cause you to violate your probation. Consult an attorney immediately if you were on probation when you were charged with drug possession.
  • · You want your day in court. You have a constitutional right to a trial. Do not give up that right without a good reason.

Luke J. Nichols

Nichols & Green pllc

10617 Jones Street Suite 101B

Fairfax Va 22030

[email protected]

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