Difference Between Drug Possession and Possession with Intent to Distribute in Fairfax, Virginia

What is the Difference Between a Drug Possession and Distribution Charge?

The gap between drug possession charges and drug distribution charges in Virginia is a mile wide. They have different proof requirements and punishments. There is also an option to avoid jail time available to drug possession charges but not available to distribution charges.

What Do the Police Have to Prove for Each Offense?

Drug possession charges are easier to prove then distribution charges but usually lead to a lighter sentence. To prove a possession charge, the Commonwealth’s Attorney must show that you knowing or intentionally had control over an illegal substance. Having control over the substance extends beyond simply having the substance on your person. Control can be found where the defendant has access to the substance, for example when it is being kept in the glove compartment of a vehicle. As well, the police need to show that the defendant either knew what the substance was or disregarded a substantial risk that the stuff was an illegal drug. However, the defendant must also have known that drugs were present. By way of example, a defendant who borrows a friend’s car without knowing its contents may not be responsible.

To prove a drug distribution charge, the police must be able convince a jury or judge that the defendant either manufactured or possessed drugs with the intent to sell them. This can be very difficult for the police to accomplish in some cases because it involves determining what’s going on in the defendant’s mind. The police will often need to do so through circumstantial evidence, such as the quantity of drugs involved or the way the drugs are packaged. Each of these tactics poses problems for the police. For example, the police will need to show that the quantity possessed was above and beyond the amount usually consumed by the defendant. A defense lawyer can also sometimes argue that drugs are packaged a certain way simply because that’s how they were when purchased.

What Are the Differences in Punishment for the Two Offenses?

The sentences for both drug possession and drug distribution are serious. With the exception of marijuana, possession of most street drugs is a Class 5 felony, carrying a sentence of between one and five years or up to 12 months and $2,500 in fines. The basic punishment for the distribution of most street drugs is between five and forty years and a fine of up to $500,000. However, that punishment can increase or include mandatory minimums if there are prior convictions or large quantities of drugs involved.

One key distinction between drug distribution and drug possession lies with the 251 disposition. Va. Code 18.2-251 provides for the more lenient treatment of first time drug possession offenders. Under a 251 disposition, the case will be dismissed after the defendant undergoes a drug evaluation and completes any required drug education or treatment. The defendant will also be required to stay drug and alcohol free during a probationary period and complete 100-hours of community service for a felony drug possession offense.


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