Drug offenses under Virginia and federal law can be divided into two categories: possession offenses and distribution offenses. There are hundreds of statutes dealing with drugs and controlled substances, but the most common offenses and punishments are outlined below.
Virginia law looks at conduct involving three types of drugs: controlled substances; marijuana and imitation controlled substances.
- Controlled substances: A controlled substance is one listed in schedules I–VI. Under federal law, marijuana is listed as a schedule I controlled substances, but in Virginia, it is a separate substance with separate, less severe penalties.
- Imitation controlled substances: An imitation controlled substance can be either of two things: (1) a counterfeit controlled substance i.e., a controlled substance packaged or labeled to appear to be manufactured by a manufacturer other than the actual manufacturer; or (2) a substance in any form which is not a controlled substance subject to abuse. In both cases, the government must show that the substance is likely to be mistaken for a controlled substance. For example, selling baking powder represented as cocaine could be distribution of an imitation controlled substance.
Drug Possession Offenses
Possession must be both knowing and intentional. Knowledge refers to the character of the substance and its presence at the place where it was found. Intention refers to the defendant’s control over the substance. To prove possession, the government must prove that the defendant:
- knew what the substance was,
- knew where it was, and
- show that he or she had control over it.
When drugs are not in physical possession
When the drugs are not found in the actual, physical possession of the defendant, possession is constructive only. These are harder cases for the government to prove because the law provides that control of the place in which the drugs were found creates no presumption that the person knew of or intended to possess the drugs.
For example, if someone is traveling in a vehicle with another person and drugs are discovered in the trunk, both occupants of the vehicle could be charged with constructive possession of the drugs. But to prove its case, the government must place the defendant in recent control of the automobile and must present evidence that the defendant knew the drugs were present and knew what they were.
Without voluntary, incriminating statements from the defendant, this is extremely difficult. Joint or multiple possession is also possible. If each defendant knew the substance was present and knew what it was, and each exercised control over it, then each has knowingly and intentionally possessed and can be convicted.
Proving the drugs are illegal
Then government must also prove that the suspected drugs are, in fact, illegal drugs. This is done either through field testing by the officer at the scene, or through forensic laboratory analysis. Cases involving lab analysis can drag on for several months because of the high volume of drug cases prosecuted statewide.
Punishments for drug possession
Possession of a schedule I or II controlled substance is a class 5 felony, punished by 0-12 months jail or 1-10 years imprisonment and up to a $2,500 fine. There is also an automatic 6-month suspension of the defendant’s driver’s license and mandatory substance abuse treatment. First-time offenders are eligible for diversion and eventual dismissal if certain conditions are met, including 100 hours of community service (24 hours for misdemeanor offenses).
Possession of marijuana is a misdemeanor and a first offense carries up to 30 days in jail and a fine up to $500. A first offender diversion program is also available. Possession of substances scheduled III through VI are misdemeanors.
Drug Distribution Offenses
Distribution and possession with intent to distribute are punished the same, the only difference being those charged with distribution were actually caught in the act of giving or selling drugs to another. Possession with intent cases are harder to prove because the government must prove the specific intent to sell or give the drugs at some later time. Often this must be proven with circumstantial evidence.
Proving intent to distribute
The most common circumstantial evidence used to prove intent to distribute is quantity and packaging.
- Quantity implies that one who possesses more drugs than he or she personally can use intends to distribute the excess.
- Packaging refers to the way the whole quantity possessed is broken down into units. Usually, the evidence is that the defendant possessed drugs in units designed for retail sales (i.e., baggies).
Possession of a single capsule of prescription medication or one unit of heroin will not support a finding of intent to distribute; but possession of 50 prescription capsules or several ounces of marijuana may be sufficient. In addition, simultaneous possession of scales or other paraphernalia, large quantities of cash, weapons, packaging materials, or text messages indicating distribution activity are also circumstantial evidence of intent.
Punishment for Drug Distribution Offenses
A distribution offense involving a schedule I or II drug (other than methamphetamine) is punishable by 5 to 40 years in prison and a fine of $500,000. This can be reduced to a class 5 felony by proving that the drug was distributed as an accommodation, i.e., that there was no money earned for the distribution and no intent to induce dependence in the recipient of the drug.
The penalty for a distribution offense involving marijuana depends upon the weight of the marijuana involved. The penalty scale is as follows:
- one-half ounce or less—class 1 misdemeanor;
- more than one-half ounce but less than 5 pounds—class 5 felony;
- more than 5 pounds—felony with 5 to 30 years’ imprisonment.
The felonies can be reduced to a class 1 misdemeanor if the defense proves that the distribution was an accommodation.
Firearms possession too
It is a class 6 felony to possess a firearm while also possessing a Schedule I or II substance. It is also a felony to possess, use or display a firearm while committing certain serious drug felonies, and significant mandatory minimum punishments may apply depending on the circumstances of the case.
Hire an experienced criminal defense attorney
Drug offenses can be damaging to your career and family. If you have been charged with a drug possession or distribution offense, seek out experienced legal help immediately. We have substantial experience in representing clients accused of drug offenses in Prince William County, Stafford and Fairfax. Give us a call today at 703-492-4200, or send us an email right now. We know you’re worried. We’re here for you.