Virginia Criminal Attorney is an established criminal defense firm that primarily serves clients in Fairfax and Northern Virginia. One of our areas of focus is drug possession. This is an offense that involves willfully owning illegal drug substances either for distribution, sale, or personal use. If you are facing drug possession charges or any drug-related charges, our attorneys can analyze your case and help you fight the charges.

What is Drug Possession under Virginia Laws?

Section 250 of Virginia Code 18.2 defines drug possession as an act of holding or owning drug substances such as heroin, marijuana, cocaine, methamphetamine, or lysergic acid diethylamide (LSD). You can only face drug possession charges when these drugs are under your control. Also known as possession of controlled substances unlawfully, this section considers a drug or a controlled substance to be any substance listed in the state's statutory drugs classification. Thus, substances such as tobacco and alcohol are not controlled substances and you cannot face criminal charges for possessing such substances.

Drug possession laws in Virginia are stringent. Therefore, expect the prosecutor to vigorously prosecute you if you are charged with drug possession. Nevertheless, any of the below facts must be true for you to be violating the drug possession statute:

  • You have dealings in the distribution of controlled substances;
  • You possess an amount of the substance for the second time;
  • The drugs are in a place that you can easily access; for instance, a car driver can be charged with drug possession if a syringe of cocaine is found under a vehicle seat while he was driving;
  • You have the primary access or ability to access drugs. For instance, when drugs are found in your bedroom, you may be prosecuted for drug accessibility, possession, or even drug selling.

What are Drug Possession Penalties?

Possession of illegal drugs may be charged as a misdemeanor or felony crime depending on the drug classification or schedule. Drug schedules categorize the drug substances and drug-making chemicals into six distinct classes depending on the classification of the drug under the federal drug possession laws and the drug’s acceptance for medical usage. The seriousness of the drug possession charge can be classified “dependent” determined on how dangerous and addictive the substance is. Below are the drug classifications with their penalties:

  • Schedule I. Substances under this class are considered the most dangerous. These substances hold the highest potential for abuse and the ability to cause psychological and physical dependence. They include LSD, ecstasy, and heroin.

  • Schedule II. Similar to schedule I drugs, schedule II drugs are dangerous and highly addictive. The difference between drugs in the two classes is that the schedule I drugs have no medical use while schedule II drugs can be used for medicinal purposes. These drugs include PCP, morphine, cocaine, and methamphetamine. The possession of Schedule I drugs or Schedule II drugs is considered a class 5 felony offense, punishable by a fine of up to 2,500 dollars, and/or a maximum of 10 years imprisonment.

  • Schedule III. Schedule III drugs have a moderate to lower potential for physical and psychological dependence than Schedule II drugs. They also have medical use. They include codeine, opioids, ketamine, testosterone, and anabolic steroids. The drug abuse potential is less compared to schedule I and II drugs; therefore, the schedule III drug possessors face charges under class 1 misdemeanor. The penalties include a fine of up to 2,500 dollars and/or a jail sentence of up to 12 months.
  • Schedule IV. These drugs have a low risk of dependence and low potential for abuse. Some examples of these drugs are Xanax, Soma, Valium, Ambien, Darvon, Talwin, Tramadol, Ativan, and Darvocet. Possessing such drugs is a class 2 misdemeanor offense, punishable by up to six months in jail, and/or up to 2,500 dollars as fines.

  • Schedule V. These drug substances consist of preparations with limited quantities of certain narcotics. They also have a lower potential for abuse compared to drugs in category IV. They include cough medicine with codeine (Robitussin AC), Parepectolin, Lomotil, Lyrica, and Motofen, which are prescribed for antitussive, analgesic, and anti-diarrheal purposes. The Schedule V drug possession is categorized under class 3 misdemeanor, which has a maximum fine of 500 dollars.

  • Schedule VI. In the conventional sense, Schedule IV substances are not drugs, but they are some inhabitants that can be abused recreationally. The possession of Schedule VI drugs is a class 4 misdemeanor, with maximum fines of 250 dollars.

Marijuana (or cannabis), despite not falling under the above six schedules, is another drug substance whose possession can attract penalties. If the substance is less than ½ ounce, the offense is a misdemeanor, punishable by a maximum fine of 500 dollars and a maximum of 30 days in jail.

When you possess or use marijuana (with less than a ½ ounce) for a second time, the charge is considered a class 1 misdemeanor. Its maximum penalties are 2500 dollars and 12 months in jail.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   

Finally, if you are accused of possessing marijuana with an intention to sell or distribute it, the charge is categorized as a class 5 felony. The punishments for this offense are imprisonment for two to ten years and/or a maximum of 2,500 dollars as fines.

Drug Treatment Program in Virginia

Interestingly, other states handle drug possessors by incarceration and enacting a drug treatment program. The offenders associated with non-violent drug and drug-related offenses are rehabilitated and directed to treatment through a court program. In Virginia, drug possession offenders are only introduced to drug treatment via a drug treatment court.

In cases where the offender is convicted of drug possession for the first time and has no history of violent crime, he/she may plead guilty for drug possession penalties. The court may accept the offer but take the accused for a probation period instead of undergoing the drug treatment tests carried in Virginia’s drug treatment courts. Below is how Virginia’s drug treatment courts handle the drug possessors;

  • Virginia drugs laws have the goal of ensuring that the drug users and addicts are treated to become productive and live according to the law;
  • The Virginia court controls the defendant’s progress by enacting sanctions where applicable;
  • The drug addict is taken for probation monitoring where several drug tests are carried out;
  • Virginia’s court treatment is of a high standard, but the individual implements the specific procedure;
  • The initial stage of the drug addict’s development relapses and is considered part of the process which doesn’t lead to additional sanctions; and lastly
  • A team of judges, probation officers, an attorney, and treatment professional’s work together to ensure the defendant’s drug abuse problems are solved accordingly.

Similar to drug laws in some states, a Virginia prosecutor may charge the offense of drug possession as a felony if the violation involved one or more aggravating factors such as drug possession with the intent to sell or owning a firearm. The charges are usually determined by the subsequent charges where a person is punished for a similar crime. Below are the circumstances under which a drug possessor can be charged with a felony;

  • If the illegal drugs are found on or near a school, at a school bus stop, or on a school bus.
  • If the offender has been convicted of drug possession for a second time.
  • When the possessed drugs are on or near parks, swimming pools, public buildings, public transportation, or housing units.
  • If the illegal drugs are used in the presence of minors (under 18 years).
  • If the drugs are found on or near a drug treatment facility.

What are some Defenses to Drug Possession Charges?

You could easily face a conviction of drug possession even if you are innocent of the charges. This is because the simple evidence that the controlled substances were under your possession is a significant element of drug possession charges. A full analysis of your case by an experienced attorney will help determine the best course of action to take in your exact situation. These defenses include:

  1. a) The drugs belong to someone else. This claim is a common defense strategy to drug crimes, which means that the drugs were not in your physical possession. Also, this argument would imply that the drugs are under the control of another person and you are mistakenly identified as the drug owner or possessor. The drugs could be in a central access area (where anybody can access them). Accordingly, everybody in that area can face drug-related charges. For example, a police officer confiscates bunches of cocaine in your vehicle in which you are driving alongside two other passengers. Even though you face the drug possession charges because the drugs were in a place that you can access, your attorney can argue that you were not aware that the drugs were in the vehicle and they belonged to a passenger. If true, you are not liable for drug possession charges.

  2. b) A doctor prescribed the drugs. The police might arrest you for possessing legal drugs illegally even if a doctor prescribed the substances to you. In this case, an attorney would show the court that the drugs were via doctor’s prescription by producing the specific order from the doctor. In a similar case, your attorney may ask the prosecutor to present a test analysis of the illegal drug substance from the crime lab. The crime lab technician should also perform the lab results before the court or testify in a trial to help the judge make a final verdict. If such tests reveal that the substances are legal or used as per your medical direction, the judge may drop the case against you.

  3. c) The police illegally searched you. Any person has the right to (a) remain silent to avoid self-incrimination, (b) due process, and (c) prove unfair police harassments, searches, and intimidation. Similarly, the police should have a warrant before conducting a search on your private property or arresting you. If you feel that the police infringed on any of your rights or held an illegal process, the judge may drop the charges against you because an illegal operation cannot anchor criminal charges.

  4. d) Missing drugs. Your attorney should demand that the prosecutor presents the actual drugs to the court as evidence. Failure of the prosecutor to produce this evidence would automatically invalidate the charges.

  5. e) You were framed. In the case that investigators find illegal drugs in your home without your knowledge and they have no history of you purchasing them, they may find themselves on the witness stand explaining why they targeted you during a drug investigation. It is usually difficult for prosecutors to prove that you are a drug possessor or a collaborator with drug possessors if there is no previous record linking you to the crime. This may lead to an acquittal. Unreasonable search and seizure conducted on your properties are also vital aspects to support that you were framed and made a target by the investigators. An unreasonable seizure is a situation where a law enforcement officer has no right to search your property without a search warrant or probable cause. Note that another person (out of hate, anger, the need for revenge, and so on) may give false clues to law enforcement officers that you are in possession of drugs, leading to an arrest. Your attorney should consider every detail presented in your case to determine the reason behind the charges.

  6. f) Entrapment. An entrapment scenario arises when the police use coercion and other overbearing tactics to force someone to commit a crime. In this case, the officers will present the drugs in question before the court. But you can argue that they entrapped you into committing the offense. For instance, an officer might have forced you to possess some drugs on the basis that another charge against you would be dropped. The presence of a witness would be essential in cementing this argument.

  7. g) Medical use of marijuana exception. Federal courts do not recognize the use of marijuana as a defense for drug-related charges. On the contrary, states with marijuana exceptions such as Virginia allow a person to be exempted from drug possession charges if they use marijuana for medical purpose. Such a person is only required to produce a qualified doctor’s signed prescription. Remember, in Virginia, you can still face drug possession charges if you are in possession of marijuana beyond the stipulated amount or dosage.

What Are Some Offenses Related to Drug Possession?

  1. Drug trafficking and distribution. Drug trafficking and distribution is a more severe crime compared to drug possession. This offense means that a person is facing accusations for delivering, selling, or illegally providing controlled substances. Therefore, one can be convicted and prosecuted for trafficking and transporting more substantial amounts of drugs such as cocaine. The offense is a felony that attracts between 3 years and life imprisonment depending on the type and quantity of the drug, the crime scene, and the criminal history of the distributor or trafficker.

  2. Drug Dealing. Drug dealing refers to an act of selling illegal drugs in small quantities. The dealers are charged with selling illicit drugs and convicted depending on the number of drugs. For instance; a person caught selling 50 grams of marijuana can be sentenced for a fine of up to 250,000 dollars and imprisonment of up to five years. Furthermore, a person selling 1,000 kilograms of marijuana can face a sentence exceeding ten years in prison.

  3. Manufacturing. A person can face drug manufacturing charges for producing illegal and controlled substances. The manufacturing process involves growing, possessing, or producing natural elements such as Cannabis sativa. Also, a person can be charged with producing controlled substances such as cocaine, LSD, or heroin in a laboratory.

  4. Distribution or possession of paraphernalia. Drug paraphernalia refers to equipment used to produce, inject, conceal, or inhale illegal drugs. Some of the equipment includes syringes, bongs, pipes, and rolling papers. The law forbids the selling, exportation, or importation of any drug paraphernalia. However, there are challenges while identifying the paraphernalia since the majority of such equipment is designed and sold for legal purposes. For example, bongs have a label restricting them for tobacco usage. However, the restriction cannot protect you from facing drug paraphernalia charges because the verdict will depend on where you bought the bongs and how they were used. This offense is a class 1 misdemeanor under Virginia Code §54.1-3466 and it is punishable by a maximum of twelve months in jail and 2500 dollars as fines.

Finding Legal Representation Near Me

Virginia Criminal Attorney is a criminal defense law firm primarily serving clients in Fairfax and the Northern Virginia areas. Our defense attorneys are ready to evaluate your drug possession case and establish a perfect defense strategy for your case. In case you are facing drug possession charges or any other drug-related charges, don't hesitate to call 703-718-5533 to get in touch with an experienced criminal attorney.