Call For A Free Initial Consultation (703) 273-4100

Drug Possession

Drug offenses are an unfortunate consequence of the law wrestling with both an individual's freedom to, for example, smoke marijuana and an individual's addiction to more serious drug use. Many people are not bothering anyone and get caught with marijuana and are sometimes labeled a drug dealer depending on the amount and type of packaging confiscated. On the other hand, many people turn to harder drug use to cope with life and that addiction many times brings them into the hands of the law by either drug possession charges or, other times, to larceny charges as they steal to later sell for money to get drugs.  Contact a Fairfax Drug Possession Lawyer to discuss these matters because there are many things that be done to help your case.  We offer a Free Consultation to discuss your case.  Give us a call or use the contact form below.  Text-Call:  703-300-5426.

Notwithstanding, there many issues that arrive in possession cases: Did the Defendant know the substance was present? Did the Defendant make any admissions incriminating himself? Are there any 4th Amendment issues regarding the stop or the arrest? Are there any 5th Amendment issues regarding Miranda Warnings? Did the Commonwealth follow the proper procedures in having the stuff tested and proper chain of custody
established?

Possession of controlled substances unlawful: § 18.2-250  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.).

Upon the prosecution of a person for a violation of this section, ownership or occupancy of premises or vehicle upon or in which a controlled substance was found shall not create a presumption that such person either knowingly or intentionally possessed such controlled substance.

Thoughts: The statute is clear that just because an individual owns the home or car in which the substance is found, it does not create a presumption that they possessed the substance.
Accordingly, Tucker v. Commonwealth, 18 Va. App. 141 (1994),holds that the Commonwealth must prove beyond a reasonable doubt that the Defendant possessed the drug either actually or constructively with an awareness of its presence and character.
In fact, mere proximity is not enough to establish possession.

Drug Classification:
Schedule I or II Class 5 Felony
Schedule III Class 1 Misdmeanor
Schedule IV Class 2 Misdemeanor
Schedule V Class 3 Misdemeanor

Schedule IV Class 4 Misdemeanor
**Note that all drug possession charges result in a 6month loss of privilege to drive in Virginia pursuant to § 18.2-259.1

Possession of marijuana unlawful: § 18.2-250.1 It is unlawful for any person knowingly or intentionally to possess marijuana 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.).
Upon the prosecution of a person for violation of this section, ownership or occupancy of the premises or vehicle upon or in which marijuana was found shall not create a presumption that such person either knowingly or intentionally possessed such marijuana.
A 1st conviction is an Unclassified Misdemeanor with maximum 30 day jail sentence and $500 fine. A 2nd conviction is a Class 1 Misdemeanor with a maximum of 12 months in jail and $2500 fine.

Thoughts:
With the District of Columbia has legalized marijuana possession for medical purposes, the above referenced statute appears to allow its possession in Virginia pursuant to a valid prescription. It is rare that an individual in Virginia is caught with pot and has a valid prescription.
Notice the same language in the marijuana statute that is in the drug possession statute. Being around the stuff, in and of itself, is not enough for the Commonwealth to maintain a guilty conviction.

In 2014, the Commonwealth's Courts have relaxed a bit. In many jurisdictions, prosecutors are not longer seeking jail time for simple pot possession cases. Nevertheless, the mandatory 6month
license loss associated with a marijuana conviction leads most people to still fight the charge.

Persons charged with first offense may be placed on probation; conditions; substance abuse screening, assessment treatment and education programs or services; drug tests; costs and fees; violations; discharge: § 18.2-251 (generally) allows for the dismissal of a drug charge provided the individual has never had a drug conviction or a prior “bite of the apple” with the so called 251 disposition.
The typical use of this statute is for marijuana charges. The charge is dismissed if the individual successfully completes probation,  usually consisting of 24 hours of community service, remaining substances free, and not incurring any new violations of law (excluding simple traffic tickets). Depending on the presiding Judge, the probation lasts either 6 months or 1 year.
In addition, a person charged with Felony Possession of a Controlled Drug is eligible for the 251program. Probation for a felony drug possession is for 1 year and generally requires 100 hours of community service and typically requires more intensive treatment and drug screening. In any event, upon completion, the charge is dismissed with no conviction.

Thoughts:
Many times the prosecutor will offer a plea deal on a guilty plea to a possession of paraphernalia charge pursuant to § 53.1-3466. Many people jump at this because, unlike with the drug-related cases above, there is no license suspension on a paraphernalia conviction. However, I always ask my clients to think hard about taking a paraphernalia conviction because it is a misdemeanor and a conviction remains on your record for life.

In felony cases in which the person is eligible for the 251-program, many prosecutors will offer a plea deal on a guilty plea to a possession of a schedule III drug charge, pursuant to § 18.2-250 , a misdemeanor. As I indicated above, I always recommend my clients to pursue the course that results in a dismissal.
Notwithstanding, some people want the case resolved with no probation and we will pursue the client's objectives.

Other Offenses Generally:
Selling Schedule I or II Drug § 18.2-248: 5 years mandatory minimum jail sentence to maximum 40 years. Typically a hand-to-hand drug deal to an undercover officer or confidential informant.
Sometimes its the amount of drugs found with baggies packaged for distribution and large amounts of cash.

Selling Marijuana §18.2248.1:Up to hal-founce is Class 1 misdemeanor; More than half-ounce but not more than 5 pounds is Class 5 felony. Typically, either a hand-to-hand drug deal or the
person is found with a large amount of pot in multiple baggies with scales and large amounts of cash.
Obtaining Drugs by Fraud §18.2-258.1:Class 6 felony. Has a provision that gives the Court the authority to reduce the charge to a Class 1 misdemeanor upon completion of probation.
Typically, a forged prescription handed up to a CVS pharmacy technician to get pills.

What is a Free Initial Consultation? How does it work?
We offer a no obligation Free Initial Consultation to discuss your drug possession case. You can either come in for an in-office appointment or do a telephone conference. We will talk about the facts of your case, whether any mitigating evidence is necessary, the price for the representation, and the next steps. While each case is different, our fees are reasonable. We like being in court and enjoy helping people. We can help you too.

The truth about your case

We will not “sugar coat.” We will tell you exactly what you are facing and will give you the best and worst case scenarios. We are not here to scare you or to pull the wool over your eyes. We find many people calling us for a simple case where they have spoken to other lawyers and are now afraid. However, after speaking with those people and getting the facts, many times there is nothing to fear. We will tell you how things look and we will tell you the truth because we want happy clients. That’s you!

Menu