Virginia Legal Trends and More: A Higher Tolerance?

A higher tolerance?
Jurors in Albemarle express anger over pressing pot charge

By Peter Vieth
Published: May 16, 2011

Tags: Albemarle County Circuit Court, Criminal, Judge Cheryl V. Higgins

In a drug case tried in Albemarle County last month, it took nearly five hours to seat the jury.

The charge was simple possession of marijuana, and the amount was less than five ounces.

Why did it take so long?

Nineteen potential jurors were called, and eight of them were mad that the case was being pursued at all. “The government has better things to do” was the general sentiment. And they were so hostile that the prosecutor initially sought to exclude all eight.

The judge interviewed the eight people and let four of them stay. The case took another five hours. After a full day of trial, the jury ultimately recommended that the defendant pay a $200 fine.

What was going on? The case prompts several questions.

Are jurors showing a higher tolerance of marijuana possession?

Are mandatory extra penalties appropriate?

Are prosecutors too rigid in their approach to prosecuting?

The engine behind the machine was an issue the jury never heard. Even though he was a first-time drug defendant, Troy Washington stands to lose his commercial driver’s license automatically for six months with a conviction. He’s supporting three kids on the salary he earns hauling backhoes and other heavy machinery on construction sites, according to his lawyer, James M. Hingeley. Without the CDL, he can’t do that job.

That’s why Washington fought the charges so hard.

The April 26 circuit court trial covered more than 10 hours, but even before the case reached a jury it required a trial in general district court and a hearing on whether the marijuana evidence should be suppressed.

“There was an enormous amount of resources put into this case,” said Hingeley.

The jurors’ comments may reflect a softer societal view of marijuana, but Hingeley said the case also highlights what he sees as two injustices: the law’s automatic CDL suspension and the prosecutor’s unwillingness to allow a plea that would avoid that penalty and the costs of trial.

Hingeley said the prosecutor refused to consider a deal where the punishment would allow Washington to stay on the highway.

“We prosecute all cases equally,” countered Albemarle County Commonwealth’s Attorney Denise Y. Lunsford. She was not directly involved in the case, but she explained her office’s policy is not to accommodate any special hardships caused by a conviction.

Under a Virginia law on the books since 1992, a drug conviction brings a mandatory six-month driver’s license suspension. The judge can allow a restricted license if a defendant needs to drive to keep a job. But no restricted license is permitted for a commercial driver’s license under the law, Va. Code § 18.2-259.1.

Pre-conviction probation, normally available for first-time drug offenders, was not an option, Hingeley said.

It carries the same CDL suspension under Virginia law.

Hingeley said it was a unique set of facts – a first-time offender facing such dire consequences for holding so little weed. “I believe most prosecutors would be open to handling this in a way that would result in punishment without losing their license,” he said.

Hingeley said Washington even offered to serve a short jail term if he could plead guilty to an offense such as disorderly conduct or possession of drug paraphernalia and keep his CDL. No dice, said the prosecutor.

“I have to look at the law that is in effect as the General Assembly has decided it and apply it to the facts of the case,” Lunsford said. “The law is what it is. The repercussions might be different for different defendants.”

The trouble for Washington started when the car he was in was stopped on a February night because a license plate light had burned out, Hingeley explained. A police drug dog turned up a small bag of pot inside a cigarette pack. A few flakes of marijuana were loose at the bottom of the pack. All told, the marijuana weighed 3.8 grams, just over an eighth of an ounce – less than the weight of a nickel coin.

Worried about his job, Washington fought the case through the courts, hoping for a break somewhere along the line. In circuit court, it seemed for a time as though the jury might provide such a break.

The court had summoned 19 potential jurors. Trial procedure for a misdemeanor called for a panel of 13 so a jury of seven would be left after the lawyers had made their strikes.

Eight of the 19 jurors told the judge they thought it was “ridiculous” for the case to even be brought to court, Hingeley said. “The government has better things to do,” seemed to the general sentiment among the eight, he said.

Hingeley didn’t object when the prosecutor moved to exclude all eight – it would have left the court without enough jurors to try the case, he said. The prosecutor withdrew objections to two of the jurors, and Hingeley then opposed the motion to exclude.

At that point, Judge Cheryl V. Higgins questioned the eight jurors at length on their views about marijuana, Hingeley said. Ultimately, four were excluded and four were allowed to remain.

Opening statements from the lawyers came at about 2:30 in a trial that had started at 9:15, Hingeley said. “We didn’t finish until 7:30.”

While the jury – which was not told about the CDL issue – recommended the $200 fine, the final sentencing decision is for Higgins. The sentencing has been postponed until later this month to allow Washington to explore whether he can stay employed in some capacity without a CDL.

University of Virginia law professor Richard J. Bonnie – a long-time advocate for relaxing marijuana laws – said the Washington case calls into question the wisdom of prescribing mandatory sentences, particularly for minor non-violent offenses.

Bonnie said revoking a driver’s license, and especially a CDL, is “excessive and unwarranted” unless the offense itself related to driving. Bonnie said the judge should be able to take into account whether such a harsh penalty is suitable for the circumstances of the case.

“It just shows the legislature needs to be much more careful in prescribing mandatory sentences,” Bonnie said.

“The law certainly needs to be changed, but I have questions about the exercise of prosecutorial discretion,” Hingeley said. “Isn’t there some way the defendant could be punished without him losing his livelihood?”

Lunsford said she strives to charge people uniformly and prosecute uniformly. “We prosecuted the case the same way we prosecute every other marijuana case,” she said.

As for the use of government resources – the court personnel, the police witnesses, the jury – all for a $200 fine, Lunsford points out it was the defendant who requested the jury trial.

Lunsford rejects the notion that there is a class of crimes that should not be prosecuted. “I am not a delegate or a senator. I do not feel I can change what the law is,” she said.

One legislator who tried to change the law is Del. Harvey B. Morgan, R-Newport News. Now stepping down from the General Assembly, Morgan repeatedly sponsored bills to decriminalize possession of small amounts of marijuana during his decades in the House. None of his measures ever made it out of committee.
“Look at the money this crime is costing,” Morgan said. “When the law enforcement community sees the waste of funds enforcing marijuana laws, I would hope they would step forward and do something about it,” he said.

A pharmacist by trade, Morgan said he has lobbied the Food and Drug Administration to remove marijuana from the list of Schedule I drugs, to no avail. Schedule I drugs are classified as having a high potential for abuse and no accepted medical use.

Morgan explained he was concerned about people who were denied employment as teachers or other professionals because of long ago marijuana convictions.

One Virginia prosecutor defends keeping marijuana possession illegal.

Without commenting directly on Washington’s case, Louisa County Deputy Commonwealth’s Attorney Rusty McGuire said all too many young people start with marijuana and end up with ruined lives.

“If we can catch them early and get them off drugs, everybody wins,” McGuire said. “Ninety percent of the crimes that come in the courtroom are drug- or alcohol-related.”

McGuire says Virginia law is no longer harsh on most pot smokers. Many people charged with possession as first offenders get court-supervised probation and come away without even a conviction on their record. Second offenders face a 30-day maximum sentence and even three-time offenders still face only a misdemeanor.