Virginia Drug Possession

Under Virginia law, the crime of 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.

Penalties:

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.

Possession of Marijuana is always a misdemeanor offense. To review Virginia’s Marijuana laws, click here.

What evidence establishes Drug possession under Virginia Law?

Possession 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.


Possession with Intent to Distribute

What is 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

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.

Distribution

The Virginia crime of drug sale or drug distribution occurs when a person sells, provides, gives away, delivers, or distributes a controlled substance. See VA Code Sections 18.2-248.

Code of Virginia § 54.1-3401 contains the following definitions:

  • “Sale” includes barter, exchange, or gift, or offer therefore, and each such transaction made by any person, whether as an individual, proprietor, agent, servant, or employee.
  • “Distribute” means to deliver other than by administering or dispensing a controlled substance.
  • “Manufacture” means the production, preparation, propagation, conversion, or processing of any item regulated by this chapter, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container. This term does not include compounding.

“Can I be arrested 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.


Virignia Law: Prescription Drug Offenses

“Can I be arrested for possessing a prescription drug prescribed to someone else?”

Yes. It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice. This means that it is illegal to take a relative’s or friend’s prescription for any reason.

Examples of frequently charged prescription drugs include OxyContin, Percocet, Demerol, Valium, Ambien, Xanax, Ritalin, Dexedrine, Adderall.

“Can I be arrested for forging a drug prescription?”

Virginia Code 18.2-258.1 criminalizes obtaining drugs or procuring the administration of controlled substances by fraud, lying or forgery. This means that individuals who forge prescriptions for painkillers to increase the amount that is prescribed are committing a class 6 felony. Related crimes include prescription pad theft, possessing fraudulent prescriptions, possessing prescription medicine not prescribed to you by a doctor, calling a pharmacy to order fake prescriptions, and using computers to facilitate all of the above.


First Offense Dismissal: 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.

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.

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