At Virginia Criminal Attorney, we believe that our clients have equal rights to fair legal representation. Through our Fairfax-based office, we’ve been handling criminal defense cases such as domestic violence, driving offenses, drug crimes and fraud crimes on behalf of clients from different parts of Northern Virginia and Fairfax. Our work is to make you feel comfortable and confident about the criminal justice process and its outcomes. We also fight to ensure you of favorable results on your Class 5 felony marijuana distribution charges.
What is “Class 5 Felony Marijuana Distribution” Under Virginia Laws?
Virginia is among the US states that ban the recreational use of marijuana. The Commonwealth of Virginia has separate laws for dealing with marijuana possession and marijuana distribution cases. The penalties still differ depending on the amount of drugs found in your possession and the place you intended to distribute the drugs.
Virginia Code 18.2-248.1 outlines the rules for criminalizing marijuana distribution. This law highlights that it's unlawful to have marijuana in your possession with intent to distribute or manufacture it. The Virginia legislature made an exception for doctors/pharmacists that distribute marijuana solely for medical reasons. Such exceptions apply to the treatment of cancer or glaucoma.
Clause B of VA Code 18.2-248.1 points out that a Virginia court can consider proof that an offender intended to exchange marijuana for money or other valuable assets as evidence. This clause also states that the drug may be in the form of a tablet, capsule or pill while it’s under distribution. Under VA Code 18.2-248(d), the charges may apply to you whether you were a supervisor, manager, leader or organizer at the time the crime occurred.
Does Marijuana Qualify as a Controlled Substance Under Virginia Laws?
“Schedules I, II, III, IV, V and VI” and “controlled substances” are the commonly used terms for drugs such as marijuana and cocaine. Virginia Code 18.2-247(d) considers “marijuana” (a Schedule I drug) as any plant part obtained from a mature Cannabis or seeds/resin of Cannabis. The term also applies to derivatives of resin, seeds or parts of the Cannabis plant. Marijuana doesn’t include cannabinoids or oil extracts containing more than 12 percent composition of tetrahydrocannabinol.
What are the Penalties for Class 5 Felony Marijuana Distribution in Virginia?
The Commonwealth may handle your case as a Class 5 felony under VA Code 18.2-248.1(a)(2) if it involves the distribution of less than 5 pounds or more than half an ounce of marijuana. Penalties include a fine not exceeding $2,500 or a prison sentence not exceeding five years. Your offense may qualify as a Class 1 misdemeanor under VA Code 18.2-248.1(a)(1) if you were found distributing less than half an ounce of marijuana.
The punitive measures for a Class 1 misdemeanor in Virginia include a 12-month maximum jail sentence and a $2,500 maximum fine. You may serve 5 to 30 years locked up in prison for distributing over 5 pounds of marijuana within Virginia. Your offense may be reduced to a Class 1 misdemeanor if you prove that you didn’t intend to profit from distributing the drug.
Distributing marijuana to state or local correctional center without having any profit intent is a Class 4 felony under VA Code 18.2-248.1(b). When you distribute the drugs to a prisoner in any Virginia prison, your case will be handled as a Class 5 felony. A third felony conviction for distributing marijuana is punishable by a prison sentence ranging from 5 years to life or a fine not exceeding $500,000.
Distributing 100 kg or more of a substance combined with marijuana is an offense that’s punished by a fine not exceeding $1,000,000 and a 20-year or life imprisonment. You may face 10 to 50 years in prison or pay a fine not more than $100,000 if you distributed the drug to a minor or caused a minor to help you distribute the drug. For these penalties to apply, you should be over 18 years of age.
What are the Penalties for First Offenders?
As a first offender in any drug-related crime, you'll be placed on probation under VA Code 18.2-251. You’ll undergo assessment treatment and education services/programs, substance abuse screening or drug tests. The substance abuse assessment program must be approved by the DBHDS (Department of Behavioral Health and Developmental Services). A Virginia court may also agree to dismiss your case or reduce the sentencing.
For any of these benefits to apply, you must have a clean record and enter a plea of guilty. Violating any conditions or terms may result in the court entering a guilt adjudication and prosecuting you. For a Class 5 felony marijuana distribution case, your community service may take up to 100 hours to complete.
Can You Restore Your Rights Once Prosecuted for a Felony in Virginia?
A felony conviction in Virginia can automatically make you lose your civil rights. Such rights include the right to own/carry a firearm, the right to vie for office, the right to be a jury member and the right to vote. The Commonwealth of Virginia Governor is obliged by the Virginia Constitution to restore your civil rights. However, the restored rights won’t include the right to owning or carrying a firearm.
You’ll have to make your application via the office of the Commonwealth’s Secretary. The Secretary of the Commonwealth usually gives more priority to individuals that meet the restoration of rights standards outlined by the Governor. Qualifications for this process include having a felony conviction and being free from any felony probation or felony incarceration.
How Do Prosecutors Prove a “Class 5 Felony Marijuana Distribution” Case?
Elements that form a “Class 5 felony marijuana distribution” case include “intent”, “possession” and “distribution”. The Commonwealth needs to prove these elements when building the case. Furthermore, the offender must have acted against the rules outlined in VA Code 18.2-248.1 to be convicted of Class 5 felony marijuana distribution. Explained below are these elements in detail.
VA Code 18.2-248.1 explains that it’s illegal to give, distribute or sell marijuana willfully. Intent, in this case, means that the offender had motive and expected to earn something from the act. The Commonwealth can use financial transactions or any distribution notices you gave the other party to prove that you willfully committed the crime. Other evidence may include firearms, a large sum of cash, previous "intent to distribute"offenses and packaging.
An offender must be in possession of marijuana to be charged for other subsequent crimes such as Class 5 felony marijuana distribution. VA Code 18.2-250.1 considers the possession of marijuana without a prescription as an unlawful act. Lease or ownership documents, which reveal ownership or lease of a vehicle or property that had marijuana, can be used to prove that you were in possession of marijuana.
Virginia Code 54.1-3401 defines the term “distribute” as an act of delivering a controlled substance. Virginia courts usually interpret this term as an act of transferring to, selling to or gifting other people marijuana. The Commonwealth must present evidence showing that you were distributing marijuana unlawfully. Evidence may include vehicle registration number or footage showing your vehicle in transit.
What Testimonies are Valid in a “Class 5 Felony Marijuana Distribution” Case?
VA Code 192.188.1(b) states that law enforcement officers are permitted to present DFC (Department of Forensic Science) approved field tests while testifying in court. The report may give proof that you distributed marijuana. Such evidence will only be valid if you signed a Supreme Court-approved written notice asking for a full chemical evaluation. Expect to be given the notice before trial.
You may request a full chemical evaluation done on the alleged plant you were accused of distributing. Your lawyer can make such a request before trial by filing a motion. The court will order DFC to perform this evaluation and suggest how evidence will be stored, transferred and returned.
Will the Seized Marijuana Be Destroyed Before the Court Hearings?
Virginia Code 19.2-386.24 gives law enforcement agencies permission to retain only 10 pounds of the seized controlled substances and destroy the rest. The remaining 10 pounds of the drugs are supposed to be used as evidence. Before the officers conduct the operation, they should notify you or your lawyer. The law also requires them to take pictures of the seized materials and draft a report for the same.
Which Legal Defenses Best Suit a “Class 5 Felony Marijuana Distribution” Case?
Distributing any amount of marijuana is a serious crime in the Commonwealth of Virginia. You risk having a permanent criminal record and missing out on certain employment opportunities. A criminal defense lawyer can be your only hope for fighting these charges. Here are some of the legal defenses your attorney may present in court in your favor.
- No Constructive Possession
Virginia Code 18.2-248.1 suggests that it’s illegal to be in possession of marijuana with intent to distribute, give or sell it. You stand a chance of having your case dismissed if the police officers failed to find the marijuana in your possession. If the police found the marijuana in your car, your lawyer can argue that the drug wasn’t constructively in your possession. This means that someone else may have left it in your vehicle.
Entrapment may qualify as a legal defense in your Class 5 felony marijuana distribution case if the law enforcement officials tricked you into committing the crime. They may have pressured you to distribute marijuana to a third party and arrest you for the action. Your lawyer's arguments should present specific events on how the entrapment took place with supporting evidence. You may also testify about how the officers pressured you to commit the crime.
- No Crime Lab Analysis was Conducted
Before using the marijuana as evidence, the police officers are supposed to send it to a crime lab for further analysis. The lab analyst should give an expert witness statement for the Commonwealth to make its case against you. Your attorney can request a crime lab analysis to be conducted if one wasn't done. Your charges can be dismissed if the substance tests negative.
- Broken Chain of Custody
Law enforcement officers are required by the Virginia constitution to follow proper procedures when obtaining, transferring, Analyzing and storing that are in your possession. Such methods are collectively known as a chain of custody. Marijuana obtained through these steps doesn’t qualify as evidence if the police broke the chain of custody. The Commonwealth will be forced to drop your charges after being unable to develop allegations against you.
- Exception for Virginia’s Medical Cannabis Program Participants
The Virginia House and Senate unanimously voted in favor of SB726 and HB1251 being enacted. Both SB 726 and HB1251 allow practitioners with a written certification to use THC-A oil or cannabidiol (CBD) oil for treating or alleviating symptoms of a diagnosed condition. The Joint Commission on Health Care recommended these bills. They allow for the expansion of Virginia’s medical cannabis oil program.
Virginia’s Medical Cannabis Program currently allows patients, legal guardians and parents to apply for medical cannabis use. Once registered, you’ll be given a written certification by a physician certified by the Board of Pharmacy. You can use the written certification along with your medical history report to develop a defense against Class 5 felony marijuana distribution charges.
The Best Strategies for Choosing a Lawyer for a “Class 5 Felony Marijuana Distribution” Case
Hire a criminal lawyer you’re comfortable with since you’ll be interacting a lot as your case progresses. Both of you should agree on the goals surrounding the case and be transparent with each other. Your mandate is to give the attorney any information or documents relevant to your criminal charges promptly.
Don't forget to contact the legal expert about any new developments in your case. The lawyer has to keep you informed on the reasonable status of your case and address other queries you may have. Just like other felony drug crimes, a Class 5 felony marijuana distribution case involves numerous court proceedings and defenses from both parties. Choose a lawyer that can guarantee you peace of mind throughout the processes.
Can a Lawyer Handling a Marijuana Case Reveal Information Protected by the Attorney-Client Privilege?
The Virginia State Bar lists information confidentiality as one of the Professional Guidelines and Rules of Conduct for lawyers operating in Virginia. Your lawyer is mandated by these policies not to reveal any information you shared in confidentiality. The attorney can only disclose this information if it can help establish a claim or defense in your Class 5 felony marijuana distribution case. Expect the attorney to release the information if when mandated by a court order or the law.
Your lawyer should promptly release information showing that you intentionally committed a crime. Your attorney can also release information about the malpractice of another attorney to a Virginia court or the Virginia State Bar. Withholding such information may lead to disbarment or payment of hefty fines.
The Commonwealth may add further charges in your case depending on its intensity. You may be prosecuted for possession of marijuana or selling/manufacturing drugs near certain properties. Other crimes the Commonwealth related to Class 5 felony marijuana distribution are discussed as follows:
- Unlawful Marijuana Possession
Intentional possession of marijuana without a prescription is a crime under VA Code 18.2-250.1. VA Code 18.2-250.1 makes exceptions for correctional officers and law enforcement officers. Simple marijuana possession is a misdemeanor that attracts a $500 fine or 30-day jail sentence depending on the amount of marijuana.
- Advertising Materials Portraying Marijuana to Minors
Virginia Code 18.2-255.1 highlights that’s it’s a crime to intentionally sell, display or distribute materials or instruments that reveal marijuana use to minors. The material may contain information about ingesting, administering, smoking or growing controlled substances such as marijuana. Such a crime is convicted as a Class 1 misdemeanor.
- Selling, Manufacturing or Distributing Controlled Substances Near or On Certain Properties
VA Code 18.2-255.2 points out that this offense may involve controlled substances such as marijuana. The properties can also be situated on or near a child day center, school or college. You have to be selling, manufacturing or distributing the drugs within less than 1,000 feet of the property to be charged with this crime. This felony crime attracts a prison sentence not exceeding five years of a fine not exceeding $100,000.
- Possession or Use of a Weapon While Distributing Marijuana
Having a weapon in your possession or using it as you distribute over one pound of marijuana is an offense. The offense falls under Class 6 felony and can attract not more than a 5-year prison sentence under VA Code 18.2-308.4. You must have used or have attempted to use the firearm threateningly for the Commonwealth to build a case against you.
- Attempting to Distribute Marijuana
An attempted felony marijuana distribution case is prosecuted under Virginia Code 18.2-257(a). The penalty includes a one to a ten-year prison sentence. An attempted misdemeanor marijuana distribution crime is treated as a Class 2 misdemeanor.
Have Your Marijuana Charges Handled by a Criminal Lawyer Near Me
Are you facing Class 5 felony marijuana distribution charges? Seek legal representation from drug offense lawyers working at Virginia Criminal Attorney. We're exceptionally experienced at helping clients across Fairfax, VA, and Northern Virginia battle their criminal charges. Call our Fairfax Criminal Lawyer today at 703-718-5533 for a free consultation or to answer other inquiries you may have regarding your case.