Possession of a controlled substance is a common charge in Virginia. In many cases, someone was in the wrong place at the wrong time or holding on to something for a friend and the next thing they know, they are facing drug charges. Drug possession can be a felony crime in Virginia, even for someone with no prior criminal record.

The amount and type of substance involved can make a substantial difference in the type of charge and penalty a defendant may face. If you were arrested for drug possession or accused of possession with intent to distribute in Virginia, contact me today for a free consultation.

Drug Possession Laws in Virginia

Under Virginia Code § 18.2-250, it is unlawful for any person to knowingly or intentionally possess a controlled substance without a valid prescription. The penalties and criminal charges for a drug possession charge can depend on a number of factors, including

• Type of controlled substance (Class),
• Amount of controlled substance,
• Location, and
• Prior criminal history.

Drug Classification in Virginia

Drugs in Virginia are classified as Schedule I to Schedule VI. Generally, the schedule of drugs is linked to the potential for abuse and whether there is accepted medical use in treatment in the U.S. or safety concerns. Examples of drug classification in Virginia include the following.

1. Schedule I controlled substances in Virginia can include types of heroin, psilocybin, LSD, and ecstasy.
2. Schedule II controlled substances in Virginia may include cocaine, opium, morphine, oxycodone, fentanyl, and codeine.
3. Schedule III controlled substances in Virginia often include anabolic steroids.
4. Schedule IV controlled substances in Virginia may include alprazolam (Xanax), clonazepam (Klonopin), or diazepam (Valium).
5. Schedule V controlled substances in Virginia may include medications or drugs with lower amounts of codeine, like prescription cough medicines.  
6. Schedule VI controlled substances in Virginia may include other stimulant or depressant drugs that do not fall into Schedule 1-5 categories.

Possession of Prescription Drugs Without a Prescription

Many people end up charged with drug possession for possessing a prescription medication given to them by a friend or family member. Possession of a prescription drug without a valid prescription can lead to similar charges as possession of illegal narcotics. Even if the drug was given to the defendant by someone who had a prescription or got the drugs from a doctor, possession without a valid prescription can result in drug charges.

Possession of Drug Paraphernalia

Even where a person is not in possession of a controlled substance, possession of drug paraphernalia may lead to criminal charges. This is a separate statute under Virginia and is generally charged as a misdemeanor. Controlled paraphernalia could be any instrument or implement used or adapted for the administration of a controlled substance. For example, hypodermic needles, gel caps, small plastic envelopes, or measuring devices could be included as drug paraphernalia.  

Penalties for Drug Possession in Virginia  

The penalties for drug possession depend on the specific substance, amount, criminal record, and other factors. Drug possession can be charged as a misdemeanor or felony in Virginia. In most cases, a first-time possession charge is eligible for a first-time offender drug program.

• Possession of a Schedule I or Schedule II drug is a Class 5 felony. The penalties for a Class 5 felony possession conviction can include up to 10 years in prison and a fine of up to $2,500.
• Possession of a Schedule III drug is a Class 1 misdemeanor. The penalties for a Class 1 misdemeanor possession conviction can include up to 12 months in jail and a fine of up to $2,500.
• Possession of a Schedule IV drug is a Class 2 misdemeanor. The penalties for a Class 2 misdemeanor possession conviction can include up to six months in jail and a fine of up to $1,000.
• Possession of a Schedule V drug is a Class 3 misdemeanor. The penalties for a Class 3 misdemeanor possession conviction can include a fine of up to $500.
• Possession of a Schedule VI drug is a Class 4 misdemeanor. The penalties for a Class 4 misdemeanor possession conviction can include a fine of up to $250.

First-time Offender Program in Virginia  

A first-time simple possession arrest does not have to result in serious criminal penalties. Eligible participants who have been charged with possession can be eligible for a drug diversion program. Participants who meet the requirements and conditions can have charges deferred until successful completion of the program. Conditions may include the following.

• Suspended or restricted license.
• Getting substance abuse treatment.
• Community service.
• Submitting to random drug and alcohol tests.
• Substance abuse education.
• Paying the program costs.
• Other conditions imposed by the courts.

Generally, participants will have to agree to stipulate sufficient evidence for guilt. Violating the conditions, such as failing a drug test or getting arrested, can mean the court will find the defendant guilty and proceed to sentencing. However, successful completion of the program can mean your case will be dismissed with certain requirements.

Drug Possession Defenses

Talk to your Virginia criminal defense attorney about how defenses can be used in your case. Your experienced criminal defense lawyer will look at the facts and evidence in your case and identify the best options to fight the criminal charges, which can include  

• Unlawful search and seizure,
• Police misconduct,
• Challenging the identification of the drug,
• Challenging the amount of the substance,
• Lawful possession with a prescription, or
• Another person was in possession.

It is up to the prosecutor to prove all elements of the charge, including that possession was knowing and intentional. According to Virginia statutes, ownership of a vehicle or occupancy in a home or apartment where drugs were found shall not create a presumption that the person possessed a controlled substance. Your defense attorney can build on this to show the prosecutor has not proven their case.