Breaking it down
Felony drug possession in Virginia is a serious offense that upon conviction can result in a lengthy prison sentence and thousands of dollars in fines. But exactly what drug possession means isn’t always cut and dried, and defenses may be available to you.
- Virginia makes it a felony to knowingly and intentionally possess a Schedule I or Schedule II drug
- Penalties include a maximum 10-year prison sentence and $2,500 fine
- If you didn’t know the drug was in your possession or in your home or car, you may have a defense
- You also may have a defense if you didn’t know what the drug was
- A valid prescription may be a defense to charges you were in possession of certain drugs
Being convicted of felony drug possession can carry serious consequences, often requiring help from qualified drug lawyers in VA in order to potentially avoid years in prison and thousands of dollars in fines and costs, not to mention a criminal record that can affect your ability to get a job or a place to live. Drug cases can be complicated and can hinge on legal nuance. Sometimes a small detail can be the difference in getting your case dismissed, or in having a less serious misdemeanor conviction instead of a felony. An experienced drug attorney can help explore the facts of your case and the best options for your defense.
Possessing certain kinds of drugs in Virginia is considered a felony crime. Virginia Code §18.2-250 makes it illegal to knowingly or intentionally possess a controlled substance without a valid prescription. Provision (a) of that statute makes it a felony to possess any substance listed as a Schedule I or Schedule II substance under the state’s Drug Control Act. These are drugs generally considered those with a high potential for addiction or abuse, and with little or restricted medical value. Many are ones that can be prescribed, such as opioid painkillers, but others are street drugs that are illegal to possess no matter the circumstances.
- Schedule I Substances – A Schedule I substance in Virginia is defined as one with a high potential for abuse and that has no accepted medical use in the United States. A drug also may be listed as a Schedule I substance if it’s considered unsafe for supervised medical use. Dozens of drugs are listed as Schedule I substances in Virginia Code §54.1-3446. Some examples of illegal street drugs included on Schedule I include heroin, ecstasy or molly, LSD, and “date rape drug” GHB.
- Schedule II Substances – Schedule II substances in Virginia include those with legitimate medical uses but high potential for addiction and abuse.Among the common drugs listed on Schedule II are illegal street drugs such as cocaine and methamphetamine, and narcotic pain medications such as codeine, oxycodone, and hydrocodone.
- What is Drug Possession in Virginia? – A drug doesn’t have to belong to you to be considered in your possession for purposes of a criminal charge in Virginia. It just has to be within your control, and you have to know what the drug is. You don’t have to know specifically that the drug is cocaine. But you do have to know that it contains an illegal substance. Virginia courts have said that simply being near an illegal drug, or its presence in your car or apartment, isn’t enough to presume you were in possession. There has to be some evidence that you exercised control over the illegal substance. Courts have said if you enter a confined space that was drug-free before you entered, and drugs are there when you leave, that can be evidence that you were in possession.
Virginia Drug Penalties
Possession of a Schedule I or Schedule II substance is a felony offense in Virginia. Penalties include a standard sentence of one to 10 years in prison, although the law allows a judge or jury the discretion to sentence you to less than one year in jail. The penalty upon conviction also may include up to a $2,500 fine. You also face loss of driving privileges for six months, although a restricted license can be available.
Drug Courts in Virginia
The 23rd Judicial Circuit, which consists of Roanoke City, Roanoke County, and Salem, has a Drug Court. Drug Court is a rigorous program for offenders who recognize they have a drug problem and are willing to commit to overcoming it. Drug Court participants must submit to random drug screens and agree to be incarcerated without a hearing if they fail to fully comply with the terms of recovery. In exchange, Drug Court graduates often have their charges dismissed.
First Offender Program for Drug Crime Related Convictions
Virginia offers an option for first-time drug offenders to have their case deferred if they meet a set of stringent requirements. This may seem like an enticing option, but it can be expensive and have consequences that should be carefully weighed before entering what criminal lawyers refer to as the 251 program.
The program requires either entering a guilty plea or stipulating that enough evidence exists to prove your guilt. Other requirements laid out in Virginia Code §18.2-251 include:
- Getting a substance abuse assessment
- Entering and successfully completing substance abuse treatment or an educational program if appropriate based on the assessment
- Payment of all costs of the program, assessment, and treatment, based on your ability to pay unless the court deems you indigent
- Remaining drug and alcohol-free and submitting to random drug tests
- Making reasonable efforts to stay employed
- Perform 100 hours of community service when charged with a felony
- Getting your fingerprints taken
- Loss of your driver’s license for six months unless the court decides to let you have a restricted license
If you’re a teacher or a public school employee, you may be suspended from work under Virginia Code §22.1-315.
If any one of these terms is violated, the court will proceed with your case under the guilty plea or stipulation you previously made.
If you fulfill all of the terms, your case will be dismissed, but it still shows up on your criminal record. It may be considered a conviction under some circumstances and it may affect future cases if you’re ever charged with another drug offense.
Also, anyone who looks at your record will be able to see that your charge was dismissed because you entered the 251 deferral program. This may affect your ability to get a job, or your immigration status if you’re not a U.S. citizen.
If the evidence is stacked against you and a conviction seems ensured, the 251 program may help you avoid a felony conviction and possible prison sentence. It can also get you help if you have a substance abuse problem. An experienced criminal defense lawyer can help you determine if having your case deferred under the 251 program might be an option for you, or if you should take your case to trial. This isn’t a decision you should make on your own without getting legal counsel first.
Defenses For Your Virginia Drug Crime
To secure a conviction on felony drug possession charge in Virginia, a prosecutor has to prove
- You had in your possession
- A Schedule I or Schedule II substance
- Your possession was knowing and intentional
You may have a defense to the charge if the substance wasn’t found on your person. When the substance was found near your or in your residence or car, possession can be trickier for the prosecutor to prove and may come down to small details. A skilled criminal defense lawyer can look at the facts of your case and know which details might allow you to challenge the allegation that you possessed the drug.
You also may have a defense if you didn’t know what the substance was, or if it was a prescription drug such as Oxycodone and you had a valid prescription from a health care provider. If there’s any question about what the substance was, you have the right to have it submitted for scientific testing and confirmation that it was in fact a Schedule I or Schedule II substance. If it wasn’t, your charge may be dismissed.
Drug cases often involve questions about searches and whether the police met all legal requirements before searching your body, residence, or vehicle. An experienced Virginia attorney who is highly knowledgeable with drug crimes can spot flaws in the process if they exist, and potentially get your case dismissed.
Facing Felony Drug Charges in Virginia?
If you’ve been charged with drug possession in Virginia, the experienced criminal defense attorneys at Copenhaver, Ellett & Derrico can help evaluate the details of your case and your options. For an appointment at our Roanoke office, call us at (540) 343-9349.