There are a number of substances that are illegal in Virginia. They are classified as Schedule I or Schedule II controlled substances in the Virginia Code ( sec 54.1-3446, 3448), with the exception of Cannabis, or Marijuana (not including Hashish) which enjoys a special category of drug offense as the only intoxicant that is a misdemeanor to possess and is not considered a controlled substance in Virginia. Drug Possession
Drug offenses come in two forms, Possession and Distribution. To find a person guilty of possession, the Commonwealth’s Attorney has to prove that the substances found were in actually illegal, that the person knew that the substances were illegal drugs, and that the person exercised control over the drugs. Usually this information is gathered from people making statements that show their guilt or allowing police to search a car, their person, or their home. Many charges could be avoided if people exercised their right to not incriminate themselves and their right to be free of unreasonable searches.
Constructive Possession
If the illegal drugs are not found directly on the person or in some kind of container, such as a purse or backpack that is being held by the person, then the case is constructive possession. Constructive possession is harder for the government to prove, as it requires more than just that the drugs were found in a person’s house or car. The Commonwealth has to prove that the Defendant made some effort to hide or get rid of the drugs, that they were found in close proximity to the person, or the person made some statement that incriminated him.
Drug Distribution
Distribution is the act of giving an illegal substance to another person. Accommodation is the act of giving illegal substances to another person but doing so without any expectation of profit, for example sharing drugs with someone. Accommodation is a part of the Distribution statutes but it places the burden on the Defendant to show that the act of Distribution was actually an Accommodation. Distribution charges have different levels according to the amount of drugs involved or transported. The Distribution statutes also include the acts of making, manufacturing and Possession with Intent to Distribute.
Fourth Amendment Rights
Every person has a right to be free from unreasonable Searches. This means that no person has to allow the police to search their person, their car or their home. The fact that a person does not allow police to search cannot be used against them at trial. There are times when police can search without permission, Police are trained to know when they can search without permission, and the steps they need to do that, for instance obtaining a search warrant. If police ask if they can search, then they know that they cannot search without permission, and want to search. If police want to search a person and they are legally justified in doing so, they are not going to ask for permission to search. There is no reason to agree to be searched by police.
Fifth Amendment Rights
Every person has a right to not make incriminating statements. Police are trained to get a person to make statements, and often a case that ends in conviction is based largely on incriminating statements made by the defendant. It is a crime to lie to police in an effort to hinder their investigation, but it is not illegal to refuse to make a statement or to refuse to answer a question. A person’s refusal to make statements can not be used against them in a criminal trial. There is no reason to make incriminating statements to police.
Every drug offense requires a six month mandatory loss of driver’s license in the State.
Marijuana, Cannabis
- Possession of Marijuana – Va. Code 18.2-250.1 – is punishable as a Class 1 Misdemeanor (up to 12 months in jail and up to $2,500 fine), however a first conviction for marijuana is subject to a maximum punishment of 30 days in jail and up to $500 fine;
- Distribution of Marijuana – Va. Code 18.2-248.1 prohibits the sale, gift, distribution or possession with intent to sell, give or distribute marijuana. Up to one half ounce – Class 1 Misdemeanor (up to 12 months in jail and up to $2,500 fine);
- More than one half ounce but no more than five pounds is a Class 5 Felony (1 day to 10 years in prison, up to $2,500 fine);
- More than five pounds is an unclassified felony punishable by 5 years to 30 years in prison;
- Accommodation is punished as a Class 1 Misdemeanor (up to 12 months in jail and up to $2,500 fine);
- Growing marijuana is punishable as an unclassified felony punished by 5 years to 30 years in prison;
- Third or subsequent felony violations are unclassified felonies punishable by 5 years to life in prison, up to $500,00 fine and a mandatory minimum sentence of 5 years;
- Medical Marijuana in Virginia – Va. Code 18.2-251.1 – While Virginia does not allow medical marijuana for any purpose with a valid prescription as other states do, Virginia does allow medical marijuana with a valid prescription to treat cancer or glaucoma.
Schedule I or Schedule II Drugs
- Possession of controlled substances is made illegal by Va. Code 18.2-250. This code section makes possession of all scheduled, controlled substances illegal but this section is only going to cover felony possession, or possession of schedule I or schedule II drugs.
- Possession of a Schedule I or Schedule II controlled substance, without a valid prescription, is punishable as a Class 5 Felony (one day to five years in prison, up to $2,500 fine);
- Distribution of Schedule I or Schedule II drugs – Va. Code 18.2-248 – makes it illegal to manufacture, sell, give, distribute or possess with intent to manufacture, sell, give or distribute a controlled substance or imitation controlled substance. This offense is punished as an unclassified felony, five to forty years in prison and a fine of up to $500,000;
- Second offenses are punished as unclassified felonies, and the range of punishment is five years to life in prison and up to $500,000 fine.
- A third offense under this statute is an unclassified felony with a punishment of five years to life in prison, and up to $500,000 fine and includes a mandatory minimum punishment of five years.
- Enhanced punishment is also required by the code if the quantity of drugs involved is over a certain amount. This enhanced punishment is an unclassified felony, five years to life in prison, and up to $500,000 fine, with five year mandatory minimum punishment, as follows:
- 100 grams or more of heroin;
- 500 grams or more of a substance containing cocaine. Coca leaves or Ecgonine (a chemical related to cocaine that is found in the coca leaf);
- 250 grams or more of cocaine base;
- 10 grams or more of methamphetamine or 20 grams or more of a substance that contains methamphetamine;
- Manufacture of Methamphetamine is punished as an unclassified felony, five to forty years in prison and up to $500,00 fine;
- Second offense is punished as a unclassified felony, 10 years to forty years in prison and up to $500,000 fine;
- Third offense of manufacturing methamphetamine (or less than 200 grams in a mixture) is punishable as an unclassified felony, 10 years to forty years in prison and up to $500,000 fine with a three year mandatory minimum sentence;
- Accommodation – Distributing Schedule I or Schedule II drugs as an accommodation, and not for profit, is punished as a Class 5 felony ( 1 day to 10 years in prison and up to $2,500 fine);
- Distribution, manufacturing or intention with intent to distribute Larger Quantities of Schedule I or Schedule II drugs is punished as an unclassified felony, 20 years to life in prison with up to $1,000,000 fine and mandatory minimum sentence of 20 years in prison, for the following amounts:
- 1 kilogram or more of heroin
- 5 kilograms or more of a mixture or substance containing cocaine;
- 2.5 kilograms of base cocaine;
- 100 kilograms or more of marijuana;
- 100 grams or more of methamphetamine;
- Kingpin Statutes provide for enhanced punishment (20 year mandatory minimum sentence) for an ongoing distribution organization for the principal or leader of the organization if they received at least $100,000 but not more than $250,000 in a 12 month period, or if during a 12 month period they distributed, manufactured or possessed with the intent to distribute
- 1 to 5 kilograms of heroin;
- 5 to 10 kilograms of cocaine;
- 2.5 to 5 kilos of cocaine base;
- 100 to 250 kilograms of marijuana;
- 100 to 250 grams of methamphetamine;
- The Kingpin statue contains enhanced punishment (mandatory life in prison, or 40 years mandatory if the person cooperates with police) for leaders or principals of organizations that earn more than $250,000 in any 12 month period for distribution, manufacture or possession with intent to manufacture or for the same actions with the following quantities of drugs in a 2 month period:
- 5 kilograms or more of heroin;
- 10 kilograms or more of cocaine;/li>
- At least 5 kilograms of cocaine base;/li>
- At least 250 grams of methamphetamine.
