Hello, my name is Willie Mejia, and I am a Virginia defense attorney. In Part II of this series of
articles, I’d like to address a different subset of drug possession laws in Virginia: those that have to do
with substances other than marijuana.
Possession of controlled substances unlawful
Unlike marijuana, which does possess some legitimate health benefits,
Most of the other substances that Virginia criminalizes have little to no benefits in recreational usage.
Indeed, many of them are actually harmful to users,
Beginning with addiction and proceeding from there.
Nevertheless, many people in Virginia struggle with drug addiction,
And for those people, as well as everyone else who lives in Virginia,
It’s important to understand how Virginia criminalizes drug possession offenses,
Because a conviction for drug use– even one that stems from the clearly documented
And legitimate needs of addicts– can have serious collateral consequences,
Which often compounds or worsens the underlying issues.
Virginia’s complex law
The main statute that governs drug offenses other than marijuana is Virginia Code § 18.2-250.
Like the prior article, it’s important to break the law down in the same way,
Because this law is a bitmore complex:
“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.”
I’ve bolded the relevant portions;
Let’s go through them so we can gain a better understanding.
(1) This law bans singular “possession” of a controlled substance.
As with marijuana, “possession” in this context means having “control or dominion” over the thing in question.
If something is on you, for example, it is within your control, and therefore you possess it.
“Constructive possession” refers to the idea that if it’s not physically on you, but you have easy access or the only access to it,
then you are still in possession of it even it’s not physically on you.
Having items in a safe, for example,
For which only you have the key, would count as constructive possession.
The law criminalizes only intentional actions
(2) This law bans the “knowing or intentional” possession of a controlled substance.
Thus, if you didn’t know about any contraband they found, you have not committed an offense.
This is because the law criminalizes only intentional actions;
Having something placed on you or in your vehicle without your consent or knowledge,
When you pick up a passenger who is carrying something, for example, would be a valid defense.
Like with marijuana, the law in Virginia does prohibit police or prosecutors from using the fact that you own the house or vehicle where the contraband was found
As sole proof of possession and / or knowledge and intent.
They need more proof than that, and that’s almost always your admission to police that what they found is yours.
If you are ever pulled over and / or searched, remember always to assert your right to silence, And say nothing.
Silence CANNOT be used to show possession, or mental state, and thus is always your best defense and resource.
Schedules: forbidden substances into categories
(3) The law bans possession of “controlled substances.”
What are the controlled substances that are forbidden?
Here, the law becomes a bit complex, as the type of substance determines the potential penalty.
Virginia law follows the example of the federal government,
And classifies all prohibited controlled substances into categories known as “Schedules,”
Which are numbered one through five,
The more dangerous a substance is, the more severe the law penalizes it
With Schedule I substances being the most penalized and Schedule V substances being the least
Schedule I drugs have no medical value and high potential for abuse,
While schedule II through V substances all have some medical value,
But differ in ranking depending on their potential for abuse (from high to low).
Possession of Schedule I OR II substances are considered Class 5 felonies in Virginia.
Schedule I or II substances include but are not limited to marijuana, heroin, LSD, ecstasy, PCP, and magic mushrooms, along with cocaine, meth, oxycodone, Adderall, Ritalin, and Vicodin.
The authorized punishment for a class 5 felony is one year to ten years in prison.
Note that the penalties with respect to Schedule I & II substances are heightened if you are incarcerated
inside a “penal institution,” like a jail or prison,
Or otherwise are in “the custody” of someone who is employee of a penal institution.
Possession of a Schedule III substance is considered a Class 1 misdemeanor in Virginia.
Schedule III substances include but are not limited to Tylenol with codeine, ketamine, anabolic steroids, and testosterone.
The authorized punishment for a class 1 misdemeanor is up to one year in jail,
And / or a maximum $2500 fine.
Possession of a Schedule IV substance is considered a Class 2 misdemeanor in Virginia.
Schedule IV substances include but are not limited to Xanax, Soma, Darvocet, Valium, and Ambien.
The authorized punishment for a class 2 misdemeanor is up to six months in jail,
And / or a maximum $1000 fine.
Possession of a Schedule V substance is considered a Class 3 misdemeanor in Virginia.
Schedule V substances include but are not limited to Robitussin AC, Lomotil, Motofen, Lyrica, and Parepectolin.
The authorized punishment for a class 3 misdemeanor is a maximum fine of $500.
Virginia’s additional category
Finally, Virginia also has an additional category,
Possession of a Schedule VI substance, which is considered a class 4 misdemeanor.
This charge is extremely rare, as it only covers substances that are not already criminalized by the other Schedules.
Nevertheless, the authorized punishment for a class 4 misdemeanor is a maximum $250 fine.
As you can see, it is the substance that matters most in determining the potential penalty,
And it does make some logical sense;
The more dangerous a substance is, the more severe the law penalizes it.
A prescription would be a valid defense for possession in court
(4) Lastly, as with the prior marijuana law,
There is an exception for having certain substances pursuant to a valid doctor’s prescription.
Proof of such a prescription would be a valid defense in court.
However, keep in mind that prescriptions only apply to the person named in the prescription.
So, if you tell an officer that you used your mother’s pills,
Even with her permission and her prescription,
That could possibly incriminate you in so far as the law is concerned.
However, merely being around her prescription drugs does not count as possession,
Thus if are pulled over, and your family member left their pills in the car,
So long as you do not admit they are yours or that you have taken anything,
There’s no valid reason for a police officer to charge with you such an offense.
The law prohibits possession with intent to distribute
Sometimes, clients call and wonder why they have been charged with “possession with intent to
If they only had “just a couple of grams” of a controlled substance.
Both marijuana and other controlled substances are governed by yet another law, § 18.2-248,
Which criminalizes “possession with intent to distribute.”
This law is incredibly complex, and would take more than a blog post or article to go over its terms.
In general, the penalties for being convicted of a possession with intent to distribute offense vary by the type of substance at issue,
And are often much more severe;
It is heavily advised to consult with an attorney if you are ever charged with this particular offense.
However, there is one element in § 18.2-248 that is worth going over now,
Which I’ve bolded below:
“…It shall be unlawful for any person to manufacture, sell, give, distribute, or possess with intent to manufacture, sell, give or distribute a controlled substance.”
This law prohibits “the intent to manufacture, sell, give, or distribute” a controlled substance.
The first three are fairly straightforward–
if you’re making it, selling it, or even just giving a controlled substance to someone, that is penalized.
However, the most common way people are charged is because they are alleged to have had the “intent to distribute” something.
How can someone’s intent be determined?
The amount of substance found in possession serve as evidence of intent to distribute
The most routine way officers try to prove intent to distribute is by the weight or amount of substance found.
So for example, a simple joint found in a center console of a vehicle is likely not enough to show intent.
But the law allows for the amount of substance found to serve as evidence of intent to distribute–
Thus, if you’re caught transporting boxes and jars of marijuana purchased in DC, for example,
And then bringing them into Virginia, a police officer could charge you with possession with intent to distribute.
In such a situation, consult with a lawyer to determine if other evidence or law exists
That could counter that such an assertion
(for example, evidence that the substances at issue, even if illegal, were for personal use only).
251 program for simple possession
Finally, under Virginia law, simple possession of even a controlled substance still qualifies you for admission into the conviction-alternative, “251 program.”
If you have not been convicted of a prior possession offense,
This section, 18.2-251, allows the court to place you on supervised probation for a period of six months–
If, during that time, you stay clean, complete 24 hours of community service (or more if it’s a felony possession charge),
And successfully complete a drug treatment or education program,
The charge will be dismissed, without an adjudication of guilt.
This means that a dismissal under this section is not a formal conviction,
And thus, if you are ever asked “Have you ever been found guilty of a drug offense,”
You can lawfully answer no.
However, the catch is that, if you get a charged dismissed under this section,
You cannot later get it erased from your record (i.e., expunged).
Furthermore, with regard to this section, it does NOT apply to “possession with intent to distribute” offenses.
Thus, if you want to take advantage of the 251 program,
It’s critical that you obtain a lawyer to try to modify the charge to make you 251-eligible,
And thus avoid the potential consequences of a drug conviction on your record.
For now, that covers the basics of the most common drug charges I see in my practice.
In Part III of this series, I will cover the law regarding traffic stops and searches of vehicles,
And importantly, what powers and rights you as a person have during such instances.
Like the information here, the information to follow could mean the difference between a conviction,
Or a win, in court.