Virginia Drug Possession

Under Virginia law, the crime of illegal drug possession occurs when a person possesses a controlled substance without a valid prescription. Code of Virginia § 18.2-250. Possession of a Schedule I or II Controlled Substance is a Felony. Possession of a Schedule III, IV, V, and VI of Controlled Substance are misdemeanor offenses. A preexisting, valid prescription from a doctor is always a defense to drug possession charges.

Defenses

Possession of an illegal must be either knowing or intentional, which means that the government must prove that you either knew about or intended to have marijuana in your possession, and you didn’t just possess it accidentally or unknowingly.

Establishing the element of possession in a courtroom in very difficult for the government. In order to convict a person of illegal possession of an illicit drug, the Commonwealth must prove beyond a reasonable doubt that the accused was:

1) aware of the presence, and,
2) character of the drug, and,
3) that the accused consciously possessed it.

Mere proximity to the drug is not sufficient to prove possession. In addition, ownership or occupancy of the premises where the drug is found does not create a presumption of possession. A judge or jury can still consider these circumstantial evidence factors in determining your guilt, but it is your defense attorney’s job to convince them otherwise.

Constructive possession (which simply means possession by circumstantial evidence) may be established when there are acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the accused was aware of both the presence and character of the substance and that it was subject to his dominion and control. A good defense lawyer would argue the opposite to the court.

Common drug possession narcotics in Virginia include: cocaine, heroin, prescription pills, opioids, ecstasy, MDMA, acid, LSD, etc.

Punishment

• Possession of Schedule I or II controlled substance is a Class 5 felony punished by imprisonment of 1 to 10 years, or confinement in jail for up to 12 months and a fine of up to $2,500.
• Possession of Schedule III controlled substance is a Class 1 misdemeanor punished by confinement in jail for up to 12 months and a fine of up to $2,500.
• Possession of Schedule IV controlled substance is a Class 2 misdemeanor punished by confinement in jail for up to six months and a fine of up to $1,000.
• Possession of Schedule V controlled substance is a Class 3 misdemeanor punished by a fine of up to $500.
• Possession of Schedule VI controlled substance is a Class 4 misdemeanor punished by fine of up to $250.

Possession with Intent to Distribute / PWID

Possession with Intent to Distribute (“PWID”) a controlled substance is a felony and misdemeanor drug crime in Virignia, depending on the schedule of the narcotic.

What is PWID? Possession of an illicit drug with the intent of distributing it to another is an oversimplification of the definition of this crime, as the facts of a criminal case are never as obvious. Virginia courts have considered a number of factors alone and in combination when determining if an intent to distribute exists.

1) packaging – cocaine packaged in two individually wrapped blocks in a single plastic bag supported a finding of distribution in a famous case

2) quantity – if the quantity of drugs possessed is greater than that ordinarily possessed for personal use, that fact alone may be sufficient to prove intent; however, where the quantity is small, the fact finder may infer the drugs were intended for personal use

3) presence or absence of drug paraphernalia for personal use – the absence of drug “paraphernalia suggestive of personal use” as evidence of an intent to distribute

4) expert testimony – expert testimony, such as from a police officer, is one factor to be considered by the fact finder in determining whether drugs were possessed with intent to distribute

5) a large amount of money – the presence of an unusual amount of money, suggesting profit from sales, is another circumstance that negates an inference of possession for personal use

6) paraphernalia consistent with distribution – the presence of paraphernalia such as scales, baggie corners, or razor blades used in the packaging process is inconsistent with possession for personal use

In determining whether any person intends to manufacture, sell, give or distribute an imitation controlled substance, the court may consider, in addition to all other relevant evidence, whether any distribution or attempted distribution of such pill, capsule, tablet or substance in any other form whatsoever included an exchange of or a demand for money or other property as consideration, and, if so, whether the amount of such consideration was substantially greater than the reasonable value of such pill, capsule, tablet or substance in any other form whatsoever, considering the actual chemical composition of such pill, capsule, tablet or substance in any other form whatsoever and, where applicable, the price at which over-the-counter substances of like chemical composition sell.
Va Law § 18.2-248

Penalties for Possession with Intent to Distribute

Possession of Schedule I or II controlled substance with the intent to sell or distribute is a Felony punished by imprisonment from 5 to 40 years and a fine of up to $500,000. A second offense risks life imprisonment.

Possession of Schedules III, IV, or V controlled substance with the intent to sell or distribute is a Misdemeanor punished by confinement in jail for up to one year and a fine of up to $2,500.

Virginia Law: Distribution of Controlled Substances

The Virginia crime of drug sale or drug distribution occurs when a person sells, provides, gives away, delivers, or distributes an illegal or controlled substance. Va law 18.2-248.

Penalty for Sale or Distribution of Schedule V or IV  Drugs: class 1 misdemeanor, with a maximum term of imprisonment of 12 months in jail and a $2500 fine. The same penalty applies to imitation controlled substance Schedule V or Schedule VI.

Penalty for Sale or Distribution of Schedule IV  Drugs: class 6 felony, punishable by up to 5 years in prison and a $2500 fine.

Penalty for Sale or Distribution of Imitation Schedule I, II, III, or IV Substance: class 6 felony, punishable by up to 5 years in prison and a $2500 fine. The defense that the accused believed the imitation controlled substance to actually be a controlled substance is not accepted in Virginia.

Penalty for Sale or Distribution of Schedule III  Drugs: class 5 felony, punishable by up to 10 years in prison and a $2500 fine.

Penalty for Sale or Distribution of Schedule I or II Drugs: The penalty for a first offense sale or distribution of a Schedule I or II narcotic is 5-40 years in prison, and a fine up to $500,000. The penalty for a second offense sale or distribution of a Schedule I or II narcotic is a maximum of life imprisonment and a fine up to $500,000. A third offense carries a 10 year mandatory minimum sentence and a maximum of life imprisonment.

Any person who manufactures, sells, gives, distributes or possesses with the intent to manufacture, sell, give, or distribute any of the following will be guilty of a felony punishable by up to a $1 million fine and imprisonment for five years to life:

1. 100 grams or more of a mixture or substance containing a detectable amount of heroin;

2. 500 grams or more of a mixture or substance containing a detectable amount of:

a. Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;

b. Cocaine, its salts, optical and geometric isomers, and salts of isomers;

c. Ecgonine, its derivatives, their salts, isomers, and salts of isomers; or

d. Any compound, mixture, or preparation that contains any quantity of any of the substances referred to in subdivisions 2a through 2c;

3. 250 grams or more of a mixture or substance described in subdivisions 2a through 2d that contain cocaine base; or

4. 10 grams or more of methamphetamine, its salts, isomers, or salts of its isomers or 20 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers.

Any accused who manufactures, sells, gives, distributes or possesses with the intent to manufacture, sell, give or distribute the following will be guilty of a felony punishable 20 to life, with 20 years mandatory minimum sentence, and by a fine up to $1 million.

1. 1.0 kilograms or more of a mixture or substance containing a detectable amount of heroin;

2. 5.0 kilograms or more of a mixture or substance containing a detectable amount of:

a. Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;

b. Cocaine, its salts, optical and geometric isomers, and salts of isomers;

c. Ecgonine, its derivatives, their salts, isomers, and salts of isomers; or

d. Any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subdivisions a through c;

3. 2.5 kilograms or more of a mixture or substance described in subdivision 2 which contains cocaine base;

4. 100 kilograms or more of a mixture or substance containing a detectable amount of marijuana; or

5. 100 grams or more of methamphetamine, its salts, isomers, or salts of its isomers

Defense: The 20 year mandatory minimum sentence will not be applicable if the court finds that:

a. The accused does not have a prior conviction

b. The accused did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in connection with the offense or induce another participant in the offense to do so;

c. The offense did not result in death or serious bodily injury to any person;

d. The accused was not an organizer, leader, manager, or supervisor of others in the offense, and was not engaged in a continuing criminal enterprise; and,

e. Not later than the time of the sentencing hearing, the accused has truthfully provided to the Commonwealth all information and evidence the accused has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the accused has no relevant or useful other information to provide or that the Commonwealth already is aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

Defense of Accommodation

If the court finds that the distribution was for accommodation, not for profit, then for a Schedule I or II drug, the offense can be reduced to a Class 5 felony, with a maximum penalty fo 10 years in prison and no mandatory minimums. For a Schedule III or IV drug, the defense of accommodation reduced the charge to a Class 1 misdemeanor offense, with a maximum penalty of 12 months in jail.

Felony Meth / Methamphetamine Offenses

Manufacturing of methamphetamine (including its salts, isomers) is a felony offense punished by 10-40 years in prison and up to a $500,000 fine. A second or subsequent offense carries a maximum penalty of life imprisonment.

First Offense Dismissal for Drug Possession: 251 DISPOSITION

Virginia has something commonly referred to as a “251 Disposition.” This is a probation program for first time marijuana offenders, which leads to dismissal of first time possession offenses, for both misdemeanor and felony possession charges. This program allows a judge to extend your case for probation, during which time you will be ordered: (i) to successfully complete treatment or education program or services, (ii) to remain drug and alcohol free during the period of probation and submit to such tests during that period as may be necessary and appropriate to determine if you are drug and alcohol free, (iii) to make reasonable efforts to secure and maintain employment, and (iv) to comply with a plan of at least 100 hours of community service for a felony and up to 24 hours of community service for a misdemeanor. Such testing will be conducted by personnel of the supervising probation agency or personnel of any program or agency approved by the supervising probation agency. The court will require you to pay all or part of the costs of the program, including the costs of the screening, assessment, testing, and treatment. And, each such disposition requires a 6 month drivers license suspension.

It is very important to NOT TO TAKE A 251 DISPOSITION IF YOU THINK THERE IS A CHANCE THAT YOU MAY COMMIT ANOTHER DRUG CRIME because the charge will come back in full effect under this disposition and will create a much more complicated legal situation for you. Please call an attorney ASAP if you are facing a 251 Disposition offer from the prosecutor to make sure that it is in your best interest to take such an offer.

There is no 251 disposition for PWID or distribution charges.

Can I be punished for conspiracy to commit a drug offense?

Conspiracy to commit a drug offense is punished the same as the crime that was intended during the conspiracy. Conspiracy in Virginia is defined as an agreement between two or more people to commit a crime followed by some act by the conspirators that shows this agreement was made. Conspiracy to commit a drug offense is punished under VA Code 18.2-256.

Can I be punished for an attempt to commit a drug offense?

The attempt to commit a drug crime is punished very seriously in Virginia. VA Code § 18.2-257 punishes attempts at a misdemeanor crime as a Class 2 Misdemeanor, which is punished by up to 6 months in jail. An attempt to commit a Felony drug crime is punished by up to 10 years in prison, which is usually the same maximum penalty as the actual, or completed, drug crime.

An attempt is generally defined as making a direct step towards committing the crime while intending to commit that crime. The intent is defined as a conscious purpose. Both intent to commit the crime and the direct step towards that crime is required for conviction under Virginia law.

How are drugs classified under Virginia law?

1. Schedule I drugs have a high potential for abuse and no accepted medical use, and include heroin and LSD.
2. Schedule II drugs have a high potential for abuse and severe dependence, but have a currently accepted medical use. Schedule II drugs include PCP, cocaine, methadone, and methamphetamine.
3. Schedule III drugs have less potential for abuse than Schedule II drugs, a potential for moderate dependency and an accepted medical use. Anabolic steroids and codeine fall into this category.
4. Schedule IV drugs have less potential for abuse than Schedule III drugs, a limited potential for dependency, and are accepted in medical treatment. Schedule IV drugs include Valium, Xanax and other tranquilizers and sedatives.
5. Schedule V drugs have a low potential for abuse, limited risk for dependency and accepted medical uses. These include drugs like cough medicines with codeine.
6. Schedule VI includes certain substances which are not “drugs” in the conventional sense, but are nonetheless used, or abused, recreationally; these include toluene (found in many types of paint, especially spray paint) and similar inhalants such as amyl nitrite (or “poppers”), butyl nitrite, and nitrous oxide (found in many types of aerosol cans, though it is pharmacologically active, it is considered an inhalant). Many state and local governments enforce age limits on the sale of products containing these substances.

Crime Classifications:

Felony list:

Possession of a Schedule I Drug is a Class 5 felony.

Possession of a Schedule II Drug is a Class 5 felony.

Misdemeanor list:

Possession of a Schedule III Drug is a Class 1 misdemeanor.

Possession of a Schedule IV Drug is a Class 2 misdemeanor.

Possession of a Schedule V Drug is a Class 3 misdemeanor.

Possession of a Schedule VI Drug is a Class 4 misdemeanor.