Drugs

Virginia Drug Crimes (Controlled Substances)

The seriousness of the offense of a drug crime in Virginia depends on 3 things: the type of controlled substance, the intention behind the possession of that controlled substance, and the amount of that controlled substance.

Virginia has 6 lists of controlled substance, called schedules. Each list has a number of controlled substances on it, Schedule VI is the lowest and least serious, and Schedules I and II are equally the most serious.

The range of punishment is as little as a $25 on a civil penalty for simple possession of marijuana, to a potential life sentence for charges related to the manufacturing of certain controlled substances on Schedule I and II, and just about everything in between.

“Simple” Possession of a Controlled Substance

(Va. Code §18.2-250, §18.2-250.1)

There is nothing “simple” about simple possession charges in Virginia. Simple possession means to knowingly or intentionally possess a controlled substance, not pursuant to a prescription from a doctor. If you have been charged with simple possession, this generally means that you were found with a controlled substance on your person or near you, but that there was nothing to indicate any purpose other than for personal use. The prosecutor would need to prove that you had physical possession of the substance, or if not physical possession, then that the individual exercised “dominion and control” over the substance and knew the character of that substance (meaning they had to know that it was a controlled substance).

What Are the Penalties?

As of July 1, 2020, Simple Possession of Marijuana is a $25 fine and a civil offense, no record is supposed to be kept of the conviction for simple possession of marijuana. If you were charged prior to July 1, 2020, different courts and prosecutors are handling these matters in their own ways.

Simple Possession of Schedule I or II Controlled Substance is a class 5 felony which carries a potential prison sentence of 1–10 years or up to 1 year in jail with a fine of up to $2,500. Schedules I and II include some of the most dangerous substances such as Heroin, Fentanyl, and Amphetamines. A felony conviction carries a significant number of additional consequences, such as losing your civil rights (right to vote, purchase or possess firearms, etc.), it may prevent you from obtaining certain government assistance or obtaining a business license, it may affect employment opportunities, and much more. Additionally, as it is a conviction for a criminal offense, it will remain on your criminal record permanently.

Simple Possession of a Schedule III Controlled Substance or marijuana-derived substances (certain THC Oils and similar substances) is a class 1 misdemeanor, which carries a potential jail sentence of 0–12 months and up to a $2,500 fine. This misdemeanor  conviction will also become a permanent part of your criminal record.

Simple Possession of a Schedule IV Controlled Substance is a class 2 misdemeanor, which carries a potential jail sentence of 0–6 months, and up to a $1,000 fine. This misdemeanor  conviction will also become a permanent part of your criminal record.

Simple possession of a Schedule V Controlled Substance is a class 3 misdemeanor, which carries a maximum penalty of $500. Even though there is no potential jail sentence, this misdemeanor conviction will become a permanent part of your criminal record. 

Simple possession of a Schedule VI Controlled Substance is a class 4 misdemeanor, which carries a maximum penalty of $250.00. Even though there is no potential for a jail sentence, this misdemeanor conviction will become a permanent part of your criminal record.

Immigration Consequences

A conviction for any controlled substance charge can have severe immigration consequences including potential deportation, exclusion from admission, loss of status, and denial of naturalization. This is true even if you receive a deferred finding for a first offense.

Deferred Finding for First Offenses

For any Simple Possession charge, if it is your first offense, you may be able to receive something called a deferred finding.

This is when the Court determines there is enough evidence to find you guilty but doesn’t actually convict you. Instead, it continues the case for some period of time, usually 6 months to 1 year. The Court will place you on probation which will include: a substance abuse evaluation, treatment if it is recommended, paying court costs and any treatment costs, and completing community service hours.  While you are on probation, you must not commit any new crimes. You will also be required to not commit any other crimes during the period you are on probation. If you do everything you are supposed to do, then at the end of the probationary period, the charge will be dismissed. 

There are several problems with these types of “first offender” or “deferred disposition” programs.  The most important problem is the fact you were arrested will always stay on your record. While the record will show the charge was dismissed, it will still show you were charged. This is because arrest records for charges dismissed by a “first offender” program cannot be expunged in Virginia. So if an employer or someone else runs a background check on you, it will still be there. In addition, for immigration (and some other federal purposes) this is still treated as a CONVICTION.

The first and foremost is that it stays on your criminal record permanently as a dismissed charge. In other words, even though the case was dismissed, if an employer runs a background check they will be able to see it. Second, as far as certain federal regulations, including immigration laws, are concerned, this is still a CONVICTION for a drug offense.

Hire an Attorney

Drug cases are complicated for the prosecution to prove, but only if the proper defenses are used. “Mitigation” (that is, highlighting the best things about you, what you have done to change, etc.) can also be an especially important part of the case if done correctly. You need experienced drug possession lawyers on your team to help get you the best outcome possible in your case.

We have experience successfully defending all levels of possession charges in Northern Virginia going back to 2003. If you or a loved one have been charged with drug possession, contact us today.

Possession of Controlled Substance With Intent to Distribute

(Va. Code §18.2-248, Va. Code §18.2-248.1)

Virginia’s laws related to possession with intent to distribute carry some very significant penalties. The vast majority of these types of offenses are felony offenses. Some of the stiffest mandatory minimum sentences in Virginia are associated with these types of drug crimes. Frequently, these types of charges are called PWID charges, which stands for possession with intent to distribute.

What is Possession With Intent to Distribute?

Possession with intent to manufacture, sell, give, or distribute generally means that you were found with a controlled substance on your person, or near you, and that either a) the substance was in multiple packages or b) there were other items that made the police believe you were planning to sell or give it to another person. Frequently, this means that the police found a large amount of money, a scale, extra baggies, multiple phones, or documentation related to what people may owe. The police may also use text messages and other electronic communications to prove what you intended to do with the substance. Sometimes, the police will charge an individual with possession with intent to distribute when there is a particularly large amount of the substance, even if there is no other evidence to indicate distribution.

But It Was Only for Personal Use!

Fortunately, unlike other states, in Virginia, there is no automatic presumption that you intended to distribute the substance based on the amount. What this means is that if you are found with 1000 pills of Oxycodone, that in and of itself is not enough to prove that you intended to distribute. The larger the quantity, the harder it is to counter, but evidence of consumption may be able to assist in proving your innocence.

Manufacturing, Selling, Giving, or Distributing a Controlled Substance?

In order to be found guilty of manufacturing a controlled substance, you essentially have to create the substance. Think of Walter White from Breaking Bad.

In order to be found guilty of selling, giving, or distributing a controlled substance, the police actually have to prove that you did one of those three things. Usually, this happens because the police have set up a controlled buy with either a Confidential Informant (C.I.) of an undercover officer. Unfortunately, the penalties for actually selling, giving, or distributing a controlled substance are the same as possession with intent to manufacture, sell, give, or distribute.

Penalties

First offense PWID of a Schedule I or II substance, the penalty is 5 to 40 years in prison and a fine of up to $500,000. For substances containing detectable amounts of heroin, cocaine, and methamphetamine, there can be sentences of 5 years to life or even 20 years to life, with the 5 years or 20 years being a mandatory minimum sentence, if you have sufficient quantities of the substance, even if it’s your first offense. Additionally, manufacturing methamphetamines carries a penalty of 10 to 40 years in prison for a first offense.

PWID of more than five pounds of marijuana is punishable by 5 to 30 years in prison.

PWID of a Schedule III that is not an anabolic steroid, or PWID of 1 ounce to 5 pound of marijuana, is a class 5 felony punishable by 1 to 10 years in prison or up to 1 year in jail and/or a fine of up to $2,500.

PWID of a Schedule IV substance is a class 6 felony punishable by 1 to 5 years in prison, or up to 1 year in jail and/or a fine of up to $2,500.

PWID of a Schedule V or VI substance, or less than 1 ounce of marijuana is a class 1 misdemeanor, which is punishable by up to 1 year in jail and/or up to a $2,500 fine.

Defending Your Case

Possession with intent to distribute charges carry very harsh penalties, which can cause you to spend a significant portion of the rest of your life in prison.  As a result, these cases require examining the evidence in great detail to determine if there is anything that shows “intent,” determining whether that information was legally obtained by police, and preparing favorable evidence that counters the accusations of the police.

Additionally, there are defenses, such as accommodation, that can reduce the amount of time or even remove mandatory minimum sentences. We have experience successfully defending clients facing the most serious of drug charges in Northern Virginia going back to 2003. If you or a loved on have been charged with a serious drug offense, contact us today.