At one point in life, you may have run-ins with the law. Therefore, it is important to see legal counsel if you have been arrested and/or charged with a crime. Virginia Criminal Attorney covers a wide range of criminal matters. All of which, they can handle even on short notice as most offenses happen unrealized and unexpected. Meanwhile, it is always wise to know what to expect beforehand. Thus, this article will go into detail in regard to possessing paraphernalia with the intent to distribute.
What Qualifies as Possessing Paraphernalia with Intent to Distribute?
As per Va. Code 18.2-265.3 sale of paraphernalia is illegal, as well as possessing the same with intentions of sale. Drug paraphernalia includes roach clips, bongs, and grinders. The statute further covers paraphernalia used in the streets. However, it must be proved that the apparatus’ intended use was for a prescription or illegal drug. In case of a sale, the state must prove that the accused intended to sell. On the other hand, Va. Code 54. 1-3466 mainly deals with medical paraphernalia such as syringes. Other apparatus used in the making and distribution of controlled drugs fall under this code too. There are also other regulations with regards to advertising. Va. Code 18. 2-255.1 prohibits advertising to minors, while Va. Code 18. 2-265.5 governs advertising to the masses in general.
From the above descriptions, it is easy to deduce that having paraphernalia is not necessarily illegal; the intent to make a sale is. At times, people often get flagged down and their apparatus confiscated. In such cases, the authorities usually seek to test the equipment for illegal substances. For example, if one gets flagged down and their pipe is taken in for testing, the presence of marijuana would lead to a conviction. That lies in related charges and gets expounded further in details.
Under federal law, the crime divides into three sections; intent to distribute, possession, and possession with intent to distribute. The latter, however, cannot be classified as committed unless all three elements get fulfilled. About possession, under federal law that extends to drug equipment found within areas of one’s control. As such, it is not limited to having drugs in pockets, purses, or bags. If drug paraphernalia gets found in a person’s house or automobile, that too counts as a possession. Federal law nonetheless requires that the individual should have had full knowledge of the presence and failed to get rid of the same. When it comes to intent to distribute, the only way, the state can prove is through the prevailing circumstances. That usually gets based mainly on the amount in possession. If too high a number for personal use, intent to distribute is highly probable. Lastly, one can only get charged with possession with intent to distribute if the other two conditions get met. Take for instance a situation where one has some drug instruments but only for personal use. If used to take illegal drugs, one can get charged with possession but not intent to distribute.
Varying Forms of Possessing Paraphernalia with Intent to Distribute
As explained earlier, having paraphernalia does not necessarily amount to a crime in Virginia. Nonetheless, if the equipment is tested and found to have been used in consuming illegal drugs, crime is deemed to have been committed. In light of that, illegal substances get divided into five sections under Virginia law. These classes get mainly based on recognized medicinal use, abuse potential, and inherent dangers should they get abused. Here is the breakdown ranging from the least to the highest in terms of effects.
- Schedule VI drugs mainly comprise of drugs often subscribed, and others not under subscription class but abused often. Examples include nitrous oxide, butyl nitrite, amyl nitrite, and toluene (commonly found in paints).
- Schedule V consists of drugs with a relatively low potential for abuse. These drugs too are meant for medicinal use such as codeine-based cough syrup, among other cough syrups and tranquilizers.
- Schedule IV drugs under Virginia law are controlled drugs that have minimal abuse levels and relatively low dependency rates. Such drugs include Valium, Xanax, Rohypnol, Darvon as well as other tranquilizers within the same class.
- Schedule III comprises of drugs with a lesser dependency level compared to the level I and II. They are meant for clinical use and have moderate dependency levels. For example, ketamine, codeine, anabolic steroids, and hydrocodone.
- Schedule II drugs are meant for clinical use with high physical or psychic dependence and high potential for abuse. They include Methadone, Ritalin, morphine, PCP, cocaine, and methamphetamine.
- Schedule I is the highest ranking in terms of dependence and abuse levels. Most of them have no accepted medical use such as marijuana, LSD, heroin, ecstasy, and GHB.
Charges related to possessing paraphernalia used in the consumption of the listed drugs could lead to jail time, suspension of driver’s license, and/or fines. Schedule, I and II drugs, would lead to 5-40 years in prison with a maximum fine of $500,000 for first-time offenders. Second-time offenders face a mandatory three years in prison, and the terms range from 5 years to life in prison. Third-time offenders have a minimum ten-year mandatory sentence, and terms range from 10 years to life imprisonment. Second and third-time offenders could also receive an additional fine maxing out at $500,000. Offenders get charged as per class 5 felony under Virginia law if found in possession of schedule III substances. The crime carries a 10-year jail term and/or $2,500 maximum fine as punishment. 1-5 years in prison or fine up to $2,500 is what offenders get under class 6 felony of possessing schedule IV drugs. If found to have had equipment used to consume class V and VI drugs, you will most likely get charged as a class 1 misdemeanor. The charge comes with a 12-month prison sentence, and/or a maximum of $2,500 in fines.
Charges Related to Possessing Drug Paraphernalia with Intent to Distribute
Drug paraphernalia under Va. Code 18.2-265.1 gets defined as products, material, and equipment of all kinds, either intended for use or with the intention of the person using them in contravention to Va. Code 18.2-265.3. Such apparatus could be for usage in the planting, cultivating, propagating, growing, harvesting, producing, compounding, converting, processing, manufacturing, analyzing, strength testing, storing, preparing, packaging, concealing, ingesting, injecting, inhaling, or through any other means presenting into one’s body, marijuana, or any other controlled substance. With regards to this, there are several related charges as follows.
- Possession or the Distribution of Limited Paraphernalia in Virginia: regarding Va. Code 54.1-3466, the charge gets treated as Class 1 transgression. It is therefore punishable with a maximum 12-month jail term, and/or fines not exceeding $2,500.
- Selling drug Equipment to Minors: Code 18.2-265.3(B) forms the guiding principle concerning this charge. As such, if the defendant is above 18 years of age and sells to a minor that is 3 years younger than them, they are chargeable to a Class 6 felony. The charge comes with a jail term of up to 5 years.
- Distributing drug Equipment to Minors: if the offender has attained 18 years of age, they get charged with a Class 1 misdemeanor as per Va. Code 18.2-265.3(C). Such an offense carries a maximum jail term and fines of 12 months and $2,500 respectively.
- Advertising drug Equipment in Virginia: the applicable charge is a Class 1 misdemeanor based on Va. Code 18.2-265.5. It, therefore, applies that the offender placed an advertisement on newspapers or other means of advertisement, with the known intention of promoting the sale of equipment designed for use as drug equipment. It so applies that the offender knew, or should have known.
- Distributing or Exhibiting for Sale Content Promoting a Sale of Limited Substance Equipment in Virginia: the offense could get you serving a 12-month jail term with or without a maximum fine of $2,500. All because of distributing, selling, or displaying with the intention of making a sale to a minor, passing out material in print that advertises paraphernalia meant for the consumption of marijuana or other controlled substances. The charge is preferred as a Class 1 transgression as prescribed by Va. Code 18.2-255-1.
- Procuring Controlled Paraphernalia in Virginia Through Fraud or False Statements: Here the charge is guided by Va. Code 54.1-3470. It is further reinforced as a Class 1 offense thanks to Va. Code 54.1-3470(A). That is, should the offender have obtained or attempted to obtain controlled paraphernalia through deceit, subterfuge, fraud, misrepresentation or provision of false addresses or names. As per Va. Code 54.1-3470(B), it is a Class 1 misdemeanor if the offender provides fraudulent or false information, and/or omits some information or makes an untrue statement in pursuit of obtaining controlled drug equipment. Again, pretending to be a veterinarian, wholesaler, pharmacist, funeral director, manufacturer, or healing arts consultant, with intent and resolves of procuring controlled paraphernalia amounts to a Class 1 Transgression as per Va. Code 54.1-3470(C). All of which are punishable either by a 12-months jail term, up to $2,500 in fines or both.
- Vending Drug Paraphernalia in Virginia or Having them in Possession with the Intention of making a sale: Code 18.2-265.3 gives guidelines on possession of drug paraphernalia with the intention of selling. It is a Class 1 misdemeanor. All so, if the offender knew or should have known the equipment was made for use either in planting, cultivating, propagating, growing, harvesting, producing, compounding, converting, processing, manufacturing, analyzing, preparing, strength testing, storing, packaging, concealing, ingesting, injecting, inhaling, or through any other ways of introduction of marijuana, or any other controlled substances in the human body.
What the Prosecutor Needs to Prove
Before delving into what needs to be proven for charges to hold water, it is essential to understand the terms used as guided by Va. Code 54.1-3466 and Va. Code 54.1-3401. The terms get used in the definition of possessing drug paraphernalia with the intent to distribute.
- Device means apparatus, instruments, and contrivances with the inclusion of their accessories, parts, or components with an intention for use in the diagnosis, treatment, cure, mitigation, or prevention of disease in either animals or man to affect the function or structure of their bodies.
- Drug refers to (i) substances or articles meant for use in treatment, diagnosis, mitigation, cure, or deterrence of illness in animals or man. (ii) substances or articles documented in the sanctioned U.S certification bodies or a complement to any of them. (iii) Substances or articles meant for usage as a section of articles detailed in (ii). (iv) Substances or articles in the exemption of food meant to alter the function or structure of the animal’s/human’s bodies.
- Person refers to both singular and plural, as per case demands and encompasses association, trust, corporation, partnership, individual, government agency, as well as other institutions or entities.
- Dispense denotes the delivery of drugs to the end user or research subject per lawful instruction of qualified personnel. It includes prescription, packaging, administration, compounding, or any labeling necessary in the preparation of the substance for delivery.
- Distribute is used in reference to delivery with the exclusion of dispensing or administering a controlled substance.
- Produce implies the planting, growing, cultivation, harvesting, or manufacture of marijuana or any other controlled substance.
- Manufacture is used to refer to the act of preparation, processing, conversion, production, or propagation of any controlled substances. It could be either in direct or indirect terms through extraction from natural sources, chemical synthesis, or both. Manufacture further extends to packaging and repackaging as well as labeling or relabeling containers.
Per the detailed definitions, drug paraphernalia can be classified into two segments. (i) Envelops, gelatin capsules or containers capable of packaging individual quantities of illegal drugs in plenty to suggest conscious intention to use such equipment in the manufacture, dispensing or distribution of illegal drugs. Reasonable proximity to drug paraphernalia equipment commonly used and adulterants serve as evidence. Equipment commonly used further expands into sieves, scales, strainers, staplers, staples, and measuring spoons or quinine, mannitol, procaine hydrochloride, lactose, plus any other prohibited drug, or equipment, implement, device, machine, instrument, or a mix of all. All of these should be in a setting reasonably suggesting the intent to use all or some to produce, dispense, or sell illegal drugs.
Legal Defenses to Expect
- The Court Cannot Prove Possession: unless the prosecution proves possession, the defendant hardly gets convicted. Possession generally implies some form of physical control over the paraphernalia in question. Therefore, saying you do not own the apparatus does not absolve you of possessing it. Hence, to avoid mistaken confessions, it is in your best interest not to bother explaining much. Police usually have a hard time, especially so in determining possession where there are several people involved.
- The Court Cannot Prove Distribution: Should you manage to evade this one, you could at least get the lesser serious crime of possession. Here, the investigating teams seek to use circumstantial evidence such as measuring spoons, scales, packages in multiple numbers, or any other equipment suggesting the intention of distribution. Should such evidence not be available, they would go for phone conversations in pursuit of information that reasonably suggests an intent to distribute.
- Unannounced Seizure or Stop: seizures often involve a restriction on one’s freedom. Examples include being pulled over, getting ordered to do something, getting handcuffed, or police taking control of your belongings. If based on an illegal seizure, you could have your charges dropped. You merely have to determine if yours was an unconstitutional seizure.
- Invalid Unwarranted Arrest: Virginia Law allows police officers to make unwarranted arrests only in cases where they witness misdemeanor cases themselves or other definite circumstances. Such situations include car accident scenes on a public road, shoplifting cases, driving under the influence (applicable within three hours), and at the hospital after an accident, among other minor cases. Therefore, should you get arrested without a warrant and outside of these conditions, this is a viable defense.
As indicated and under Virginia Law, one can use several defenses to get their charges dropped. Other possible defenses include prosecution’s lack of proof for a miscellaneous crime element, illegal search/arrest, the absence of laboratory drug test, invalid certificate of drug analysis, officers being outside their jurisdictions, and wrong court jurisdictions. The defendant can also make use of the 251 Program (for first offenders), or the Do-it-Yourself 251 Program. Both reduce the repercussions considerably.
Find a Virginia Criminal Attorney Specializing in Possessing Paraphernalia with Intent to Distribute Cases Near Me
With all the information detailed above, you may feel that you are well informed. Unfortunately, State Laws often change owing to rulings in higher courts, referendums, legislation changes, among other causes. Hence, it is wise that you choose a local attorney who is well informed and has many years of experience handling these types of cases. Virginia Criminal Attorney has lawyers ready to prepare a solid defense leading to the best possible outcome. Call our Fairfax Criminal Lawyer at 703-718-5533 today for a free case evaluation!