Virginia Marijuana & Drug Charges, Defenses, Penalties: Possession of Marijuana, Possession with Intent to Distribute, Felony & Misdemeanor Drug Charges, and Drug Laws FAQ

Possession of Marijuana Law in Virginia

What is Virginia’s marijuana law? Marijuana remains illegal under Virginia law. Possession of marijuana is illegal under Va law § 18.2-250.1 and punished as a misdemeanor criminal offense.

First offense possession of marijuana in Virginia is a misdemeanor crime punished by up to 30 days in jail, a $500 fine, 6 months loss of driver’s license, and a mandatory drug program.

Second offense possession of marijuana in Virginia is elevated to a Class 1 misdemeanor, punishable by up to 1 year in jail and a $2,500.00 fine, 6 months loss of driver’s license and a mandatory drug program.

Possession must be either knowing or intentional, which means that the prosecuting attorney must prove that you either knew about or intended to have marijuana in your possession – meaning the government will have to show that you possessed marijuana intentionally, as opposed to accidentally or unknowingly.

Establishing the element of “possession” of the marijuana is 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. Your 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.


Virginia Possession with Intent to Distribute Marijuana (“PWID”)

Virginia criminalizes Possession with Intent to Distribute Marijuana under Virginia Law 18.2-248.1. The most commonly charged distribution crime is Fairfax is “Possession with Intent to Distribute.”

Possession with intent to distribute marijuana .5oz or less is a Class 1 misdemeanor – punishable by up to 12 months in jail and a $2,500.00 fine.

Possession with intent to distribute marijuana more than .5oz, but less than 5lbs,, is a Class 5 felony – punishable by up to 10 years in prison.

Possession with intent to distribute more than 5lbs of marijuana is a felony punishable by a prison sentence between 5 and 30 years in duration.

The difference between Possession of Marijuana and Possession with Intent to Distribute Marijuana will depend on the court’s analysis factors which may constitute probative evidence of intent to distribute a controlled substance. These factors include the quantity of the drugs seized, the manner in which they are packaged, and the presence of an unusual amount of cash, equipment related to drug distribution, or firearms.

Distribution of marijuana is defined as selling, sharing, trading, or gifting the drug. Virginia courts have considered a number of factors alone and in combination when determining if an intent to distribute marijuana 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


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This article is written by Virginia drug defense attorney Marina Medvin, an award-winning criminal lawyer serving Alexandria, Fairfax, and Arlington, VA. She successfully represents individuals charged with drug and marijuana crimes in Alexandria, Arlington, Fairfax, Vienna and Falls Church. Please call for a Virginia drug attorney consultation.

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Penalty Table for Virginia Marijuana Charges

Description of OffenseCode SectionCriminal ClassificationMaximum JailMinimum JailMaximum Fine
Possession of Marijuana, 1st OffenseVa. Code 18.2-250.1Class U Misdemeanor30 DaysN/A$500.00 Fine
Possession of Marijuana, 2nd OffenseVa. Code 18.2-250.1Class 1 Misdemeanor12 monthsN/A$2,500.00 Fine
Possession With Intent to Distribute < 1/2 ozVa. Code 18.2-248.1Class 1 Misdemeanor12 monthsN/A$2,500.00 Fine
Possession With Intent to Distribute > 1/2 ozVa. Code 18.2-248.1Class 5 Felony10 years1 year$2,500.00 Fine
Possession With Intent to Distribute > 5 lbsVa. Code 18.2-248.1Class U Felony30 years5 yearsN/A
Possession With Intent to Distribute, 3rd OffenseVa. Code 18.2-248.1Class U FelonyLife in prison5 years$500,000.00 Fine
Manufacturing MarijuanaVa. Code 18.2-248.1Class U Felony30 years5 years$10,000.00
Selling Marijuana to MinorVa. Code 18.2-255Class U Felony50 years10 years$100,000.00
Transporting into Virginia with Intent to Distribute > 5lbsVa. Code 18.2-255Class U Felony40 years5 years$1,000,000.00
Transporting into Virginia with Intent to Distribute > 5lbs, 2nd OffenseVa. Code 18.2-255Class U Felony40 years10 years$1,000,000.00
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FAQ Frequently Asked Questions About Possession, Distribution, Charges, and Penalties

What are the various ways the police can bring drug charges against me under Virginia law?

Police and prosecutors most commonly charge drug possession, drug distribution, and drug manufacturing. There are additional conduct charges, such as transportation into the Commonwealth of Virginia, but those are less common and are generally brought Federally instead of in the Virginia state courts.

What is drug possession?

The crime of drug possession occurs when a person possesses any controlled substance without a valid prescription (Code of Virginia § 18.2-250 and § 18.2-250.1). Possession of Marijuana is always a misdemeanor offense. However, Possession of a Schedule I or II Controlled Substance is a Felony.

What facts establish drug possession?

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.

How is Possession of Marijuana punished?

Possession of marijuana is a Misdemeanor under Virginia law. A first offense Possession of Marijuana charge is punished by confinement in jail for up to 30 days and a fine of up to $500. A second offense is a Class 1 misdemeanor punished by confinement in jail for up to one year and a fine of up to $2,500.

How is Possession of Controlled Substance punished?

  • 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.

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.

What is a 251 Disposition?

Virginia has something commonly referred to as a 251 Disposition. This is a probation program for first time drug possession offenders, which leads to dismissal of first time 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.

Explain drug sale and distribution.

The crime of drug sale or distribution occurs when a person sells, provides, gives away, delivers, or distributes a controlled substance. See VA Code Section 18.2-248.1.

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.

What is Possession with Intent to Distribute, PWID?

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

How is Possession with Intent to Distribute punished?

  • 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.
  • Possession of less than one-half ounce of marijuana with 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.
  • Possession of more than one-half ounce to five pounds of marijuana with intent to sell or distribute is a Felony that is punishable by imprisonment from 1 to 10 years, or at the discretion of the jury or the court trying the case without a jury, confinement in jail for up to one year and a fine of up to $2,500.

What is paraphernalia?

Drug paraphernalia is defined in Code of Virginia § 18.2-265.1 as equipment, products, and materials of any kind that are designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, strength testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body marijuana or a controlled substance.

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. 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. 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 the same maximum penalty as the actual, or completed, drug crime.

Can I be punished 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.

Can I be punished 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.


How are Synthetic Marijuana / Spice offenses punished under Virginia law?

Synthetic Cannabinoids, “JWH,” or “Spice,” is an herbal product sold as incense. Synthetic Cannabinoids are a Schedule I drug. Code of Virginia § 18.2-248.1:1 makes it illegal to possess, give, sell, or distribute Spice. Possession of Spice is a Class 1 misdemeanor punishable by imprisonment for up to 12 months and/or a fine of up to $2,500. Sale, gift, distribution, or possession with intent to sell, give or distribute is a Class 6 felony punishable by imprisonment for one to 10 years or imprisonment for up to 12 months and a fine of up to $2,500.

How are Bath Salts offenses punished under Virginia law?

Code of Virginia § 54.1-3446 makes it illegal to possess, use, or distribute methlyenedioxypyrovalerone (MDPV) or methylmethcathinone (mephedrone), two common synthetic cathinones found in drugs known as “bath salts.” These drugs are sometimes also sold with the label of “plant food,” “bath crystals,” “herbal incense,” or “research chemicals.” Possession of bath salts is a Class 5 felony and can be punished by imprisoned for 1 to 10 years.


SYNTHETIC MARIJUANA OFFENSES

A brand new law was enacted on March 23, 2011. For the first time in Virginia, the government is punishing synthetic marijuana use. It is effective immediately and will be soon codified as VA Code 18.2-248.1:1 and entitled “Penalties for possession, sale, gift, or distribution of or possession with intent to sell, give, or distribute synthetic cannabinoids; manufacturing.” Under this new law, synthetic marijuana offenses are treated almost identically to natural marijuana offenses.

Under the new law, the following acts are prohibited and will be punished:
1) The knowing or intentional possession of a synthetic cannabinoid is a class 1 misdemeanor.
2) The sale or distribution, or possession with intent to sell or distribute, of a synthetic cannabinoid is a class 6 felony.
3) A gift without intent to profit (an accommodation) of a synthetic cannabinoid is a class 1 misdemeanor, unless the accommodation is to an inmate of a state, local or federal penitentiary, in which case it is a class 4 felony.
4) The manufacture of a synthetic cannabinoid is a special felony “punishable by imprisonment of not less than five nor more than 30 years and a fine not to exceed $10,000.

Synthetic marijuana has a street name of K2 or spice and has the appearance of ground marijuana or potpourri. It is sold as “incense” and is sprayed with the now outlawed chemicals “bath salts” or “white wave.”

Since this is a new code section, the police are still actively developing their protocols for field testing for synthetic cannabis. Field test kits do not test for synthetic substances. This means that you should not be arrested on the street for possession of synthetic marijuana. The police should only arrest you for a synthetic marijuana offense AFTER they have properly tested the compound they seized from you in a laboratory and AFTER they have obtained a warrant for your arrest based on those test results.


251 DISPOSITION – First Offense 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 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.


PRESCRIPTION OR MEDICAL MARIJUANA

Virginia recognizes prescription or medical marijuana under two circumstances: when the prescription was issued for treatment of cancer or glaucoma only. All other treatments or medicinal purposes are not excluded from prosecution. Va Code 18.2-251.1 states, in relevant part, “No person shall be prosecuted under § 18.2-250 or § 18.2-250.1 for the possession of marijuana or tetrahydrocannabinol when that possession occurs pursuant to a valid prescription issued by a medical doctor in the course of his professional practice for treatment of cancer or glaucoma.”


HASH OIL / HASHISH CONCENTRATE

OffensePenaltyIncarcerationMax. Fine

Hash & Concentrates

Possessing hashish oilFelony1 – 10 years$ 2,500
Manufacturing, selling, giving, distributing, or possessing with intentFelony5 – 40 years$ 500,000
Bringing more than 1 oz of hashish oil into the stateFelony5 – 40 years$ 1,000,000
Subsequent offenses carry greater penalties

PARAPHERNALIA

Paraphernalia is generally punished as a misdemeanor, with a few felony exceptions. Advertising drug paraphernalia is punished under VA Code 18.2-265.5 as a Class 1 misdemeanor with up to 12 months in jail. Distributing drug paraphernalia to a minor is also punished as a Class 1 misdemeanor with up to 12 months in jail. Sale, possession with intent to sell, etc. minor is also punished as a Class 1 misdemeanor with up to 12 months in jail. However, distributing drug paraphernalia to a minor who is at least 3 years your junior is a Class 6 felony punished by up to 5 years in prison.

Under VA Code 18.2-265.1, “Drug Paraphernalia” means: all equipment, products, and materials of any kind which are either designed for use or which are intended by the person charged with violating § 18.2-265.3 for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, strength testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body marijuana or a controlled substance. It includes, but is not limited to: kits, isomerization devices, testing equipment, scales and balances, diluents and adulterants (such as quinine hydrochloride, mannitol, or mannite), separation gins and sifters, Blenders, bowls, containers, spoons, mixing devices, capsules, balloons, envelopes, pipes, bongs, syringes, needles, punctured metal bowls, tubes, etc.

Va Code 18.2-265.2. presents factors and evidence to be considered in Paraphernalia cases. In determining whether an object is drug paraphernalia, the court may consider, in addition to all other relevant evidence, the following:
1. Constitutionally admissible statements by the accused concerning the use of the object;
2. The proximity of the object to marijuana or controlled substances, which proximity is actually known to the accused;
3. Instructions, oral or written, provided with the object concerning its use;
4. Descriptive materials accompanying the object which explain or depict its use;
5. National and local advertising within the actual knowledge of the accused concerning its use;
6. The manner in which the object is displayed for sale;
7. Whether the accused is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
8. Evidence of the ratio of sales of the objects defined in § 18.2-265.1 to the total sales of the business enterprise;
9. The existence and scope of legitimate uses for the object in the community;
10. Expert testimony concerning its use or the purpose for which it was designed;
11. Relevant evidence of the intent of the accused to deliver it to persons who he knows, or should reasonably know, intend to use the object with an illegal drug. The innocence of an owner, or of anyone in control of the object, as to a direct violation of this article shall not prevent a finding that the object is intended for use or designed for use as drug paraphernalia.


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