Drug Possession, Virginia

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by | April 13, 2017

Drug Possession in Fairfax, Virginia and throughout Virginia is a criminal offense. The maximum punishment for drug possession depends on the substance possessed.

The Statute: § 18.2-250 of the Virginia Code

A. 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, or except as otherwise authorized by the Drug Control Act (§ 54.1-3400 et seq)

Picture of Drug Possession

The statute sets out punishments based on the Virginia “drug schedules.” Those schedules are laid out in the Virginia Drug Control Act. The Drug Control Act categorizes drugs and puts them in one of six “schedules” labeled I, II, III, IV, V, and VI. (That’s just one through six in roman numerals.) The drugs are categorized based on a set of criteria laid out § 54.1-3443. Generally speaking, the lower the schedule the drug is put on, the “more dangerous” the drug is considered.  Heroin, for example is a schedule I drug because it is considered highly addictive. The punishment for drug possession is greater if the drug is on a lower schedule.

Note: Marijuana possession is addressed by § 18.2-250.1 and discussed here. Manufacturing, selling, distributing or possessing with intent to distribute are all addressed by § 18.2-248 and discussed here.

How does the schedule correlate to the maximum punishment for drug possession (i.e., “how much trouble am I in”)?

Possession of Schedule I or II drugs is punishable as a Class 5 Felony: a term of imprisonment of not less than one year nor more than 10 years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.

Possession of Schedule III drugs is punishable as a Class 1 Misdemeanor: confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both.

Possession of Schedule IV drugs is punishable as a Class 2 Misdemeanor: confinement in jail for not more than six months and a fine of not more than $1,000, either or both.

Possession of Schedule V drugs is punishable as a Class 3 Misdemeanor: a fine of not more than $500.

Possession of Schedule VI drugs is punishable as a Class 4 Misdemeanor: a fine of not more than $250.

In plain English, how can one be found guilty of drug possession?

Essentially, the Commonwealth must prove two things to convict for drug possession. First, that whatever the officer seized or took is a drug that is illegal. Second, that it was possessed knowingly or intentionally. For conviction, the schedule of the drug doesn’t matter–that only matters for punishment. The prosecution will get the suspected drug tested by a lab. This will prove that it’s a drug (such as cocaine or heroin). They will then submit the lab report into evidence. Doing this proves that the substance was a “drug.”

Next, they’ll have to prove enough facts to show that the defendant “knew” they possessed the substance and that they “knew” it was a drug. It is, of course, difficult to prove what is in someone’s head. The prosecution will usually have to rely on circumstantial evidence to make its case. For example, if the drugs were found in the defendant’s pocket the prosecutor would argue that they possessed the drugs “knowingly” because people usually know what’s in their pockets. It’s the same thing for their knowledge that it was a drug. Most people don’t carry, for example, a baggie of cocaine in their pocket without knowing what they’ve got.

Often, the prosecution will prove knowledge through the use of a confession. Defendants sometimes admit to possession and knowledge of the drugs when simply asked by the officer. In many, but not all such cases, these confessions are admissible. This is because the suspect was not in custody when the officer asks if the drugs were theirs so the admission is not covered by Miranda v Arizona.

What can be done for someone that has been charged with drug possession?

Drug possession charges can be difficult to beat and are highly fact specific. They depend on many nuances of search and seizure law. These laws provide the rules for when a police officer can lawfully make a search. Generally, evidence obtained in violation of the search and seizure laws is inadmissible. Good attorneys will always investigate and talk to the police officer about how the drugs in question were discovered. If there are problems with the search and seizure of the evidence, the prosecution will often be willing to make a favorable plea bargain or, in some cases, drop the charges outright.

But even if there aren’t technical problems with a case, a good attorney can still help. The prosecution will sometimes be willing to make deals with defendants. And this is especially true if the defendant has never been in trouble before.

If you’re facing a drug possession charge, you should consider consulting with an attorney to determine whether there are any possible defenses you can present.