Drug Offenses

Drug offenses charged in Virginia that lead to convictions can have serious ramifications for one’s livelihood, ability to drive, reputation and, possibly, your ability to obtain financial aid for college.

In any case, there are many issues that arise in relation to the evidence that will be presented against you.  In drug cases, issues such as the handling of the evidence, how the evidence is analyzed by the Department of Forensic Science, how the evidence was collected, the procedure the Commonwealth must follow in order to prove the nature of a substance, as well as meeting the legal definition of “possession” are important issues that need to be addressed – immediately.

What are Controlled Substances

In 1970, Congress passed the Controlled Substances Act (“CSA”). Because of the many differences between the various types of substances, and between each individual substance, the CSA puts each substance into one of five categories, called Schedules. These categories give each substance a simple classification that helps both law enforcement and the medical community to easily understand its nature. The CSA states that the following factors affect a drug’s schedule:

Potential for abuse
Scientific information available regarding the drug’s pharmacological effect
Scientific understanding of the drug
Historical and current patterns of abuse
Magnitude of abuse
Possible risks to public health
Risk of developing psychological or physical dependence

As the DEA explains, Schedule V drugs have the least potential for abuse, while Schedule I drugs are considered to have the highest abuse and dependence potential. The DEA also lists the following examples for each drug Schedule:

Schedule I: heroin, LSD, marijuana and ecstasy

Schedule II: Ritalin, Adderall, oxycodone, methadone, cocaine and methamphetamine

Schedule III: anabolic steroids, testosterone, ketamine, products with less than 90 milligrams of
codeine per dosage and products with less than 15 milligrams of hydrocodone per dosage

Schedule IV: Xanax, Valium, Ambien, Soma and Ativan

Schedule V: cough medications containing less than 200 milligrams of codeine or per 100 milliliters, Lyrica, Motofen and Lomotil

Possession of a Schedule I or II drug in Virginia is a Class 5 felony and has a punishment range of 1 to 10 years imprisonment or up to 12 months in jail and a fine of not more than $2,500.00. Possession of a Schedule III drug in Virginia is a Class 1 Misdemeanor and has a punishment of up to 12 months in jail and a fine of not more than $2,500.00. Possession of a Schedule IV drug in Virginia is a Class 2 misdemeanor and has a punishment of up to 6 months in jail and a fine of not more than $1,000.00. Possession of a Schedule V drug in Virginia is a Class 3 misdemeanor and has a punishment of a fine of no more than $500.00.

That’s right, as you can see, under the CSA, Marijuana is listed as a Schedule I drug. However, Marijuana has its own set of rules in Virginia.

What is Possession?

Possession by a defendant must be knowing and intentional. "Possession" can be either actual or constructive. Actual possession is when a substance is found in the actual, physical possession of the defendant. 

Constructive possession is different and poses more issues for the Commonwealth. An example: Suppose you are driving down the highway and are stopped for a traffic violation. The officer looks in the back seat and sees something he believes is cocaine. You are later charged with Possession of Cocaine. At trial, the Commonwealth must prove that you knew the cocaine was present, you knew that it was cocaine and that you could exercise control over it.  A nice analysis of constructive possession is contained in Hypolite v. Commonwealth

Possession of Marijuana

Possession of cocaine, heroin, non-prescribed prescription drugs and other illegal drugs, are all serious matters that should not be taken lightly.  In the past, a possession of marijuana conviction could result in up to 30 days in jail, a fine of $500.00 and a loss of your driver's license for six months. A second or subsequent conviction is a Class 1 misdemeanor and has a punishment of up to one year in jail, a fine of not more $2,500.00 and loss of your driver’s license for six months.

After July 1, 2020, simple possession of marijuana becomes a civil matter and  holds a maximum civil penalty of $25 and there is no criminal conviction.

But decriminalization of marijuana is different than legalizing marijuana.  Under decriminalization, you can't be convicted of a criminal offense and possibly incarcerated for simple possession of marijuana.  Possession with Intent to Distribute Marijuana is still a crime in Virginia.  

A possession of marijuana with the intent to sell or distribute conviction can have drastic levels of punishment depending on the amount of marijuana involved. For example, possessing with the intent to sell or distribute less than one-half ounce of marijuana is a Class 1 misdemeanor and can lead to punishment of up to one year incarceration and/or a fine up to $2,500.00. However, possessing with the intent to sell or distribute more than one-half ounce of marijuana is a Class 5 felony with a penalty of up to 10 years incarceration and a fine up to $2,500.00. If the amount is over five pounds of marijuana, a conviction will result in a sentence of not less than 5 years nor more than 30 years of incarceration.

“Simple” Possession of a Controlled Substance

Possession of a controlled substance, such as cocaine or heroin, no matter how minute the amount (such as residue in a smoking device or needle), can result in a felony conviction and punishment of up to 10 years in prison and a fine of up to $2,500.00.  Also, if you have certain amounts of a specific drug, there is a presumption that the drug seized was not for mere personal use and that it was in fact intended to be distributed.

Possession with the Intent to Distribute a Controlled Substance

A Possession with Intent to Distribute a Controlled Substance conviction has a range of punishment of 5 years up to 40 years imprisonment and a fine up to $500,000.00. That penalty is for a first offense and it applies to specific amounts of each substance in question. For example, if you have a prior conviction for Possession with Intent to Distribute a Controlled Substance, the penalty for a new conviction of Possession with Intent to Distribute a Controlled Substance has a range of punishment of 5 years to life imprisonment, 3 years of said sentence is a mandatory minimum and a fine of not more than $500,000.00. If you have 2 prior convictions for Possession with Intent to Distribute a Controlled Substance, the punishment for a third conviction is 10 years to life imprisonment, 10 years of said sentence is a mandatory minimum and a fine of not more than $500,000.00.

As noted above, the amount of drug that is alleged to have been possessed with the intent to distribute or the actual amount distributed changes the range of punishment, even on a first conviction. If the amount in question for Possession with the Intent to Distribute Heroin is more than 100 grams, the range of punishment is 5 years to life imprisonment, 5 years of said sentence is a mandatory minimum and a fine of not more than $1,00,000.00. If the amount in question is one kilogram or more, than the punishment goes to 20 years to life imprisonment, 20 years of said sentence is a mandatory minimum and a fine of not more than $1,000,000.00. Different drugs have corresponding punishments based upon the amount seized. The punishment for Possession with the Intent to Distribute more than 500 grams of Cocaine or more than 10 grams of Methamphetamine is the same as the above-listed punishment for Possession with the Intent to Distribute more than 100 grams of Heroin. As you can see, Possession with the Intent to Distribute certain drugs can be a minefield.  To view the statute and the penalties delineated, click here.

Issues that Arise in Drug Cases

You have constitutional protections such as your Fourth Amendment Right to be free from unreasonable searches and seizures. Fourth Amendment issues often arise in drug possession cases. Did the police have the right to stop you? Did the police have the right to approach you and pat you down? Was the search warrant obtained and executed properly? There is also the matter of your Miranda rights—did you make statements in response to police questioning while you were in custody?  Other matters to explore (not only applicable to drug cases) arise out the 5th and 14th Amendment Due Process clauses.  Was the defendant selling the substance or was the defendant only accomodating another.  For example, the government must disclose the identity of its undercover informants, if the informant is relevant and helpful to the defense and necessary for the defendant to receive a fair trial.  See  Rovario v. United States.  Or the requirement that the prosecution must turn over all evidence that may exculpate the defendant in its possession.  See Brady v. Maryland.  All of these issues are important and should be thoroughly discussed with a lawyer so that you can prepare a proper and strong defense.

Some Things to Note

Even though you may be arrested by a local deputy, police officer or state trooper, certain cases can be “taken Federal”. That means the federal government takes the case from the state after you are charged with a corresponding federal crime. The amount of drugs seized usually gets the federal government’s attention.  Another example, the federal government could charge you with a federal offense if you are arrested with a a gun and a prior conviction for domestic assault and battery or you have a gun and some marijuana in your possession.  And when a charge goes federal, the stakes go up drastically.  For some examples, see US Code Section 18-922 (g).  

Simply put, drug offense convictions can have devastating effects on your life. Whether you've been charged with possession of Heroin in Stafford County, Prescription Fraud in the City of Fredericksburg, Possession of Ecstasy in Spotsylvania County, Distribution of Cocaine in the City of Richmond or any other drug crime in any county or city in Virginia, you need to talk to a lawyer who knows how to attack one of these cases. Jonathan David has handled legions of cases where his clients have been charged with drug offenses, charges ranging from simple possession of marijuana to distribution of a controlled substance in both state and federal courts.