The Law Offices of Joseph T Brown PLC

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Drug Offenses in Virginia

 

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.

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Burglary in Virginia

 

Burglary or Breaking and Entering in Virginia is the act of entering a dwelling or place of business with the intent to commit some other crime, such as larceny. Breaking is the act of opening an entranceway into a building. Entering is the act of going inside the building. Burglary charges cover a number of different situations with different punishments depending on the severity of the crime. Burglary in Virginia is charged and punished as follows:

  • Burglary – Va. Code 18.2-89. Class 3 Felony (5 years to 20 years, fine up to $100,000) prohibits breaking and entering a dwelling in the nighttime with intent to commit a felony or any larceny;
    • If the person was armed with a deadly weapon, conviction is a Class 2 Felony (20 years to life in prison and up to $100,000 fine);
  • Entering Dwelling House, etc., with intent to commit murder, rape, robbery or arson – Va. Code 18.2-90. Prohibits breaking and entering any building with the intent to commit murder, rape, robbery or arson;
    • Includes entry of a building at night time without breaking;
    • Violation is a Class 3 Felony (5 years to 20 years, up to $100,000 fine);
    • If armed with a deadly weapon, it is a Class 2 Felony (20 years to life in prison and up to $250,000 fine);
  • Entering dwelling house, etc., with intent to commit larceny, assault and battery or other felony, – Va. Code 18.2-91. Including breaking and entering a building at any time or just entering a building at night with the intent to commit larceny, assault and battery, or any felony other than murder, rape, robbery, or arson;
    • Conviction is a Unclassified Felony where the range of punishment is 1 day to 20 years, and up to $2,500 fine;
    • If the person was armed with a deadly weapon at the time of entry into the building, conviction is a Class 2 Felony (20 years to life in prison and up to $250,000 fine);
  • Breaking and Entering dwelling house with intent to commit other misdemeanor – Va. Code 18.2-92. Prohibits breaking and entering a dwelling while it is occupied, with the intent to commit any misdemeanor except assault and battery and trespass;
    • Conviction is a Class 6 Felony (1 day to 5 years, up to $2,500 fine);
    • If the person was armed with a deadly weapon at the time of entry, it is a Class 2 Felony (20 years to life in prison and up to $250,000 fine);
  • Entering bank, armed, with intent to commit larceny – Va. Code 18.2-93. Prohibits entry of any bank with a deadly weapon with the intent to commit larceny and imposes a Class 2 Felony for convictions (20 years to life in prison and up to $250,000 fine).

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Bond Hearing in Virginia

 

Anyone who is not held in jail between their arrest and trial has been released on bond with pretrial conditions. Most people who have been arrested are released by the magistrate when they are first arrested. If the magistrate denies a person bond, then they are taken before a judge (often by video) the next morning. The judge considers the person’s bond again and can grant a bond. Often at that hearing there will be a prosecutor present who may ask the judge to hold a person in jail. There also may be a pretrial report which contains information including address, employment, prior criminal convictions and other pending charges. If the person is still held without a bond, then they need to contact the Law Office of Joseph T. Brown PLC to file a bond motion and set a bond hearing as soon as possible. Some judges will let an attorney appear for a bond hearing only, while other judges will only allow a bond hearing by a lawyer who has been retained for the entire case.

At a bond hearing, the issues are whether the prisoner is a risk of flight or a danger to the community. Information that may bear on these issues may include the following:

  • Risk of Flight;
    • Prior Failure to Appear convictions;
    • Local fixed address;
    • Local employment;
    • Other ties to the state such as family in the state;
  • Danger to the Community;
    • Prior Criminal Convictions;
    • Nature of the current charges.

Although a person is presumed innocent until proven guilty, if a person is charged with a serious violent offense such as those listed in Va. Code 19.2-297.1 or any of the other conditions that are listed in Va. Code 19.2-120, there will be a presumption that no bond is proper. This presumption is rebuttable but requires that evidence be presented to the judge that overcomes the presumption of no bond.

At the Law Office of Joseph T. Brown, PLC, we understand that being held in jail pending trial can cause hardships on the person and their family who depends on them. If you or someone you know needs a bond hearing, call the Law Office of Joseph T. Brown PLC to schedule a bond hearing as soon as possible, and to give the person you care about the every possible chance to obtain a bond and to be released from jail pending their trial.

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Assault and Battery in Virginia

 

Assault and Battery is one of several violent crimes against the person in Virginia criminal law. These offenses include a range of offenses depending on the severity of the incident, the degree of injury inflicted, and the intent of the person committing the offense.  At common law (the old laws of England that we inherited in Virginia) a battery is the actual touching or striking someone, and an assault was the action of making someone believe they were about to be battered.  Today in Virginia the Code uses the common law definitions of assault and battery, but in practice only battery is usually charged.  At the other end of the spectrum is aggravated malicious wounding, which requires actual injury done with malice and intent to maim or kill.  Information about many of the different types of assault charges are included here:

  • Assault and Battery – Va. Code 18.2-57 – is a class 1 misdemeanor, up to 12 months in jail and up to $2,500 fine;
    • Includes any touching, even slight touching, that is done in an angry, insolent or rude manner;
  • Domestic Assault and Battery – Virginia Code 18.2-57.2 – is a class 1 misdemeanor (up to 12 months in jail and up to $2,500 fine) and a third offense within 20 years is a class 6 felony (1 day to 5 years in prison, fine up to $2,500);
    • Includes any touching done in an angry, insolent or rude manner;
    • Requires that the accused and victim are family or household members;
    • First Offender Provision – Va. Code 18.2-57.3 – allows for dismissal for a first offense if the defendant completes a time period of good behavior monitored by probation and completes counseling;
  • Assault by Mob There are three different versions of this offense
    • Assault and Battery by Mob – Va. Code 18.2-42 – Class 1 Misdemeanor (up to 12 months in jail and up to $2,500 fine);
      • Provides that every person who is part of a mob, where that mob commits assault or battery, is guilty of a class 1 misdemeanor;
    • Acts of Violence by Mob – Va. Code 18.2-42.1 – Provides that every person who is a member of a mob is guilty of any violent offenses committed by the mob and punished as if they have committed the offense themselves;
    • Shooting, Stabbing, etc., with intent to maim, kill, etc., by mob  – Va. Code 18.2-41;
      • Provides that any person who is part of a mob where the mob maliciously shoots, stabs, cuts or wounds a person, or causes bodily injury with intent to maim, disable, disfigure or kill, is guilty of aClass 3 Felony (5 years to 20 years, up $100,000 fine);
  • Assault on Law Enforcement – Va. Code 18.2-57(C) – If any person commits an assault and battery against a law enforcement officer;
    • Class 6 Felony (1 day to 5 years in prison, up to $2,500 fine);
    • Mandatory minimum sentence of 6 months in jail;
  • Unlawful Wounding– Va. Code 18.2-51 – If any person unlawfully shoot, stab, cut, wound or cause bodily injury, with the intent to maim, disfigure, disable or kill, it is a Class 6 Felony (1 day to 5 years, up to $2,500 fine);
  • Malicious Wounding – Va. Code 18.2-51 – Provides that any malicious shooting, stabbing, cutting, wounding or causing bodily injury, with the intent to maim, disfigure, or kill, is a Class 3 Felony (5 years to 20 years, up to $2,500 fine);
  • Aggravated Malicious Wounding – Va. Code 18.2-51.2 – Class 2 Felony (20 years to Life and fine up to $100,000);
    • For any malicious wounding  where the victim is severely injured and suffers permanent and significant physical impairment;
  • Malicious Wounding of Law Enforcement – Va. Code 18.2-51.1 – Provides that any person who commits a malicious wounding against a law enforcement officer, is guilty of an unclassified Felony which carries a range of punishment of 5 years to 30 years, and up to $100,000 fine;
    • Also includes 2 years mandatory minimum sentence.

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Punishment for Felonies and Misdemeanors in Virginia

 

If you are charged with a criminal offense in the Fredericksburg, Va. Area including the counties of Stafford, Spotsylvania, King George or Caroline, call the Law Offices of Joseph T. Brown PLC for a free, confidential consultation with a Virginia Criminal Defense Attorney.

Criminal charges and convictions can have serious, long term consequences such as fines, loss of license, or imprisonment for months or years. Anyone who is charged with a Criminal Offense in Virginia should have an attorney to represent them.

Criminal Offenses in Virginia are divided into two categories and numbered according to severity of the offense, with one being the highest punishment and worst crime.

  • Misdemeanor in Virginia – Classification and Maximum Punishment
    • Class 3 and 4 – Fine Only ($500 and $250)
    • Class 2 Misdemeanor – up to six months in jail and up to $1,000.00 fine
    • Class 1 Misdemeanor – up to twelve months in jail and up to $2,500.00 fine
  • Felony in Virginia – Classification and Maximum Punishment
    • Class 6 Felony – 1 day to 5 years, $2,500 fine
    • Class 5 Felony – 1 day to 10 years, $2,500 fine
    • Class 4 Felony – 2 years to 10 years, $100,000 fine
    • Class 3 Felony – 5 years to 20 years, $100,000 fine
    • Class 2 Felony – 20 years to Life Sentence, $100,000 fine
    • Class 1 Felony – Life Sentence, Death Penalty, $100,000 fine

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Our Disclaimer

There are many pages in this website that are devoted to giving information about various topics in the law. This information is not meant to constitute legal advice and should not be considered legal advice for any reason. Anyone faced with a legal problem addressed in the pages of this site should contact the Law Offices of Joseph T. Brown PLC for a consultation.