Drug Law Legal Primer

18.2-250.1Possession of Marijuana unlawful

  1. It is unlawful for any person knowingly or intentionally to possess marijuana unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act (§ 54.1-3400 et seq.).

Upon the prosecution of a person for violation of this section, ownership or occupancy of the premises or vehicle upon or in which marijuana was found shall not create a presumption that such person either knowingly or intentionally possessed such marijuana.

Any person who violates this section shall be guilty of a misdemeanor, and be confined in jail not more than thirty days and a fine of not more than $500, either or both; any person, upon a second or subsequent conviction of a violation of this section, shall be guilty of a Class 1 misdemeanor.

  1. The provisions of this section shall not apply to members of state, federal, county, city or town law-enforcement agencies, jail officers, or correctional officers, as defined in § 53.1-1, certified as handlers of dogs trained in the detection of controlled substances when possession of marijuana is necessary for the performance of their duties.

Fairfax marijuana cases are by far the most commonly charged type of drug case. The number of cases is so high that the legislators no longer require marijuana to be sent to the lab for testing. In Fairfax, officers are now able to perform their own testing. There are rules and regulations that apply and an officer must comply with all of them if they want to use the result of the test against a defendant in court. By law, a person charged with possession has a right to have the marijuana sent to a lab for testing. This service doesn’t cost anything. There are pros and cons to doing this and the best strategy will depend on the circumstances of each case.

Important Marijuana Cases

–       Marijuana and cocaine are different drugs so a conviction for both crimes was not a double jeopardy. Fullwood v. Commonwealth.

–       Possession requires knowledge of the substance as well as dominion and control. Hambury v. Commonwealth.

–       Acts, statements, and conduct can all be used to prove knowledge of presence and character of marijuana.

–       There was enough evidence to convict for possession where the drug was out in plain sight, was near the defendant and was situated with the Defendant’s other belongings. Harris v. Commonwealth.

–       Mere proximity is insufficient by itself to prove possession, but other factors may contribute. Lane v. Commonwealth.

–       Possession of marijuana is not a lesser included crime of trying to snuggle into a jail. Logan v. Commonwealth.

–       Defendant was rightfully found guilty where there was a recently planted plant near the entrance, the plant was the only one that had been watered, and the defendant had just smoked a joint and was a long time smoker. Walton v. Commonwealth.

–       The Defendant was guilty where the drug was inside a console and the Defendant was proven to have dominion and control over the drug. Gillard v. Commonwealth.

–       Evidence was sufficient where the Defendant knew about the drug. Maxwell v. Commonwealth.

–       While the behavior was suspicious, where no one saw Defendant with the drug, there were no statements admitting guilt, and there were no fingerprints, the evidence was insufficient. Maxwell v. Commonwealth.

18.2-251 Persons charged with first offense may be placed on probation; conditions; substance abuse screening,            assessment treatment and education programs or services; drug tests; costs and fees; violations; discharge.

Whenever any person who has not previously been convicted of any offense under this article or under any statute of the United States or of any state relating to narcotic drugs, marijuana, synthetic cannabinoids, or stimulant, depressant, or hallucinogenic drugs, or has not previously had a proceeding against him for violation of such an offense dismissed as provided in this section, pleads guilty to or enters a plea of not guilty to possession of a controlled substance under § 18.2-250 or to possession of marijuana under § 18.2-250.1, or to possession of synthetic cannabinoids under subsection B of § 18.2-248.1:1, the court, upon such plea if the facts found by the court would justify a finding of guilt, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him on probation upon terms and conditions.

As a term or condition, the court shall require the accused to undergo a substance abuse assessment pursuant to § 18.2-251.01 or 19.2-299.2, as appropriate, and enter treatment and/or education program or services, if available, such as, in the opinion of the court, may be best suited to the needs of the accused based upon consideration of the substance abuse assessment. The program or services may be located in the judicial district in which the charge is brought or in any other judicial district as the court may provide. The services shall be provided by (i) a program licensed by the Department of Behavioral Health and Developmental Services, by a similar program which is made available through the Department of Corrections, (ii) a local community-based probation services agency established pursuant to § 9.1-174, or (iii) an ASAP program certified by the Commission on VASAP.

The court shall require the person entering such program under the provisions of this section to pay all or part of the costs of the program, including the costs of the screening, assessment, testing, and treatment, based upon the accused’s ability to pay unless the person is determined by the court to be indigent.

As a condition of probation, the court shall require the accused (i) to successfully complete treatment or education program or services, (ii) to remain drug and alcohol free during the period of probation and submit to such tests during that period as may be necessary and appropriate to determine if the accused is drug and alcohol free, (iii) to make reasonable efforts to secure and maintain employment, and (iv) to comply with a plan of at least 100 hours of community service for a felony and up to 24 hours of community service for a misdemeanor. Such testing shall be conducted by personnel of the supervising probation agency or personnel of any program or agency approved by the supervising probation agency.

The court shall, unless done at arrest, order the accused to report to the original arresting law-enforcement agency to submit to fingerprinting.

Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without adjudication of guilt and is a conviction only for the purposes of applying this section in subsequent proceedings.

Notwithstanding any other provision of this section, whenever a court places an individual on probation upon terms and conditions pursuant to this section, such action shall be treated as a conviction for purposes of §§ 18.2-259.122.1-315 and 46.2-390.1, and the driver’s license forfeiture provisions of those sections shall be imposed. The provisions of this paragraph shall not be applicable to any offense for which a juvenile has had his license suspended or denied pursuant to § 16.1-278.9 for the same offense.

–       Allowing a defendant first offender status is up to the trial court’s discretion. It was acceptable to deny when the defendant had no address, was uncooperative with the court, and had a criminal record and a number of traffic convictions. Montalvo v. Commonwealth.

–       The goal of this law is to reform the drug suspect. Connelly v. Commonwealth.

–       An expungement is not available for cases dismissed pursuant to this statue. Gregg v. Commonwealth.

–       Trial court is required to comply where it accepts a plea agreement related to this section. Calvillo v. Commonwealth.

–       A dismissal under this section requires the defendant to be of good behavior. White v. Commonwealth.

–       Status was improperly revoked after stated probation period was over. White v. Commonwealth.

18.2-248.1 Possession with intent to distribute (PWID) marijuana

Penalties for sale, gift, distribution or possession with intent to sell, give or distribute marijuana.

Except as authorized in the Drug Control Act, Chapter 34 of Title 54.1, it shall be unlawful for any person to sell, give, distribute or possess with intent to sell, give or distribute marijuana.

(1) Any person who violates this section with respect to:

(2) Not more than one-half ounce of marijuana is guilty of a Class 1 misdemeanor;

(3) More than one-half ounce but not more than five pounds of marijuana is guilty of a Class 5 felony;

(4) More than five pounds of marijuana is guilty of a felony punishable by imprisonment of not less than five nor more than 30 years.

If such person proves that he gave, distributed or possessed with intent to give or distribute marijuana only as an accommodation to another individual and not with intent to profit thereby from any consideration received or expected nor to induce the recipient or intended recipient of the marijuana to use or become addicted to or dependent upon such marijuana, he shall be guilty of a Class 1 misdemeanor.

(b) Any person who gives, distributes or possesses marijuana as an accommodation and not with intent to profit thereby, to an inmate of a state or local correctional facility as defined in § 53.1-1, or in the custody of an employee thereof shall be guilty of a Class 4 felony.

(c) Any person who manufactures marijuana, or possesses marijuana with the intent to manufacture such substance, not for his own use is guilty of a felony punishable by imprisonment of not less than five nor more than 30 years and a fine not to exceed $10,000.

(d) When a person is convicted of a third or subsequent felony offense under this section and it is alleged in the warrant, indictment or information that he has been before convicted of two or more felony offenses under this section or of substantially similar offenses in any other jurisdiction which offenses would be felonies if committed in the Commonwealth and such prior convictions occurred before the date of the offense alleged in the warrant, indictment or information, he shall be sentenced to imprisonment for life or for any period not less than five years, five years of which shall be a mandatory minimum term of imprisonment to be served consecutively with any other sentence and he shall be fined not more than $500,000.

Possession with intent to distribute (PWID) Marijuana can be either a felony or a misdemeanor depending on the amount of marijuana in question. If the amount is less than ½ ounce it is a misdemeanor punishable by up to one year in jail and a time of up to $2500. If the amount is between ½ ounce and 5 pounds it is a class 5 felony. The felony is punishable by a sentence of up to 5 years in jail and of up to $2500. If the amount is more than 5 pounds the punishment is between 5 and 30 years.

Important PWID Marijuana Cases

–       There is no right to use marijuana. Wolkind v. Selph.

–       Punishment for PWID is appropriate and does not violate Due Process.

–       The nature of the illegal substance can be proven by circumstantial evidence. Barelord v. Commonwealth.

–       The possession doesn’t have to be exclusive. Multiple people can possess the same weed. Ekhart v. Commonwealth.

–       The Commonwealth has to prove the Defendant knew of the nature of the illegal substance. Wells v. Commonwealth.

–       There is no presumption of knowing simply because the marijuana was in a residence owned by the defendant.

–       Evidence the defendant was sitting near the marijuana just before the police entered was sufficient to support a conviction where defendant also confessed. Hambury v. Commonwealth

–       Where the evidence of distribution is circumstantial, the manner it is packaged may be a relevant factor. Monroe v. Commonwealth.

–       Even if it’s packaged for sale, the Commonwealth must prove more to eliminate the possibility that it was purchased that way. Monroe v. Commonwealth.

–       Unusual amount of money, suggestive of illicit drug sales is a factor to support a conviction. Servis v. Commonwealth.

–       Quantity also is a potential circumstantial factor Dukes v. Commonwealth.

–       The intent to personally use a portion of the whole does not negate a person’s intent to also distribute some of the drug. Thornton v. Commonwealth.

–       If the Defendant wants to argue for an accommodation requires the Defendant to put on evidence. The burden is upon the defense. Stillwell v. Commonwealth.

–       There must be more proof than simple packaging for proof of distribution. Servis v. Commonwealth.

–       Standard for Defendant’s proving an accommodation is simply preponderance of the evidence. Stillwell v. Commonwealth.

–       15 plants, shotgun, shotgun shells, .105 ounces of dried marijuana, and a fluorescent light were sufficient to establish the Defendant was intending to sell the marijuana. Bailey v. Commonwealth.

–       Entrapment may not always be a defense. Schneider v. Commonwealth.

18.2-250 Possession of controlled substances unlawful

A. It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act (§ 54.1-3400 et seq.).

Upon the prosecution of a person for a violation of this section, ownership or occupancy of premises or vehicle upon or in which a controlled substance was found shall not create a presumption that such person either knowingly or intentionally possessed such controlled substance.

(a) Any person who violates this section with respect to any controlled substance classified in Schedule I or II of the Drug Control Act shall be guilty of a Class 5 felony.

(b) Any person other than an inmate of a penal institution as defined in § 53.1-1 or in the custody of an employee thereof, who violates this section with respect to a controlled substance classified in Schedule III shall be guilty of a Class 1 misdemeanor.

(b1) Violation of this section with respect to a controlled substance classified in Schedule IV shall be punishable as a Class 2 misdemeanor.

(b2) Violation of this section with respect to a controlled substance classified in Schedule V shall be punishable as a Class 3 misdemeanor.

(c) Violation of this section with respect to a controlled substance classified in Schedule VI shall be punishable as a Class 4 misdemeanor.

B. The provisions of this section shall not apply to members of state, federal, county, city or town law-enforcement agencies, jail officers, or correctional officers, as defined in § 53.1-1, certified as handlers of dogs trained in the detection of controlled substances when possession of a controlled substance or substances is necessary in the performance of their duties.

Important Cases About Drug Possession Generally

–       There is not a fundamental or constitutional right to use drugs. Wolkind v. Selph

–       The penalty for possession of cocaine is appropriate as the classification passes the rational basis test. Wolkind v. Selph

–       By trying to purchase an item the Defendant knew to be an illicit substance, the Defendant had committed an attempted possession. Smith v. Commonwealth.

–       Marijuana and cocaine are different drugs and conviction for possessing both was not double jeopardy. Fullwood v. Commonwealth.

–       Possession is a lesser included offense of distribution. Austin v. Commonwealth.

–       Proximity and occupancy of a vehicle are factors that a court can consider as circumstantial evidence of possession. However, there usually must be more to support a conviction. Castaneda v. Commonwealth.

–       Ownership and/or occupancy are other factors that can be considered. Alten v. Commonwealth.

–       Occupancy by itself does not create a presumption of possession. Tucker v. Commonwealth.

–       In order to convict for possession, it must be shown that the Defendant was aware of the presence and nature of the drug.

–       Physical possession is sufficient. Hornbaker v. Commonwealth.

–       Commonwealth must prove the Defendant was aware of the character of the substance. Smith v. Commonwealth.

–       Knowledge can be inferred from a Defendant’s actions and statements. Clodfeller v. Commonwealth

Admission of Evidence Important Cases

–       The drug sheet proving the substance was an illegal drug was properly admitted where it was provided to the Defendant’s first lawyer and then lost when he obtained a new lawyer. No fault could be imputed to the Commonwealth. Hobson v. Commonwealth.

–       Despite a minor discrepancy on the description of the item seized, the sheet proving it was cocaine was properly admitted into evidence. Herndon v. Commonwealth.

–       Defendant’s conviction should be reversed where it was unclear what impact inadmissible evidence played in deciding the case against him. Payne v. Commonwealth.

–       Toxicologist should not be allowed to testify about the impact the substance would have on a Defendant. It is relevant in a possession trial. Lane v. Commonwealth.

Evidence of Knowledge Important Cases

–       Ownership of property only supports an inference of guilt where it can be shown the owner exercised dominion, control, and knew the nature of the drugs. Burchette v. Commonwealth.

–       Ownership or occupancy alone isn’t enough to prove illegal possession Burchette v. Commonwealth.

–       Where the only connection to a vehicle is the Defendant’s gun and cell phone more would be required to prove possession. These items are simply too distant to the illegal contraband. Burchette v. Commonwealth.

–       It’s not enough to be an owner to a vehicle if there is no evidence of how long he had been in the car or if he was the person who was in the car when the police were called. Jones v. Commonwealth.

–       Just driving a vehicle that is found to contain contraband is insufficient. The Commonwealth must also establish knowledge of its presence. Patterson v. Commonwealth.

–       Where the drugs were found under the driver’s seat, the Defendant admitted he knew it was a crack pipe, and the Defendant admitted he had smoked recently; the finding of guilt was supported by the evidence. Brinkley v. Commonwealth.

–       Evidence sufficient to prove possession of cocaine where Defendant admitted he smoked out of a pipe, but insisted he thought it was only marijuana. Sellick v. Commonwealth.

–       Having white powder on a dollar bill in Defendant’s pocket was enough under the right circumstances to support a conviction for possession of heroin under 18.2-250. Jordan v. Commonwealth.

–       Defendant’s knowledge of cocaine possession cannot be inferred based solely on being seen with a drug dealer briefly before arrest. Behrens v. Commonwealth.

–       Defendant’s awareness of cocaine could not be inferred from his failure to show surprise upon being arrested. Behrens v. Commonwealth.

Constructive Possession Generally Important Cases

–       Possession may be proven by acts, declarations, or conduct of the accused. Bentley v. Cox.

–       Circumstantial evidence may be sufficient if it excludes every reasonable hypothesis of innocence. Holland v. Commonwealth.

–       Mere presence of the scene of a crime, or in company of these breaking the law, is insufficient to establish probable cause. Taylor v. Waters.

–       Constructive possession may be shown if it tends to establish the Defendant exercised dominion and control and was aware of the presence and character of the drug.

–       Evidence a person was in the house where drugs were found is only probative. It is not enough by itself to prove illegal possession. Behrens v. Commonwealth.

–       Proof that cocaine was found in a car owned by Defendant was insufficient, by itself, to support a guilty finding. Nonnemaker v. Commonwealth.

–       Where evidence showed the Defendant was the only one in a police car, shortly after the officer had secured the vehicle that was sufficient proof to support a finding of guilt. Williams v. Commonwealth.

–       Documents proving the Defendant owned the house where drugs were found raised no presumption he was in possession of illegal drugs. Drew v. Commonwealth.

–       Where Defendant had plant material on his person and his actions indicated some evidence of knowledge of their illegal nature, it was within the courts discretion to find him guilty of possessing illegal drugs. Hoinbaker v. Commonwealth.

–       Defendant was guilty where he was only person in the car, cocaine was found near him and in plain sight, and the Defendant testified he cleaned the car earlier that day. Graves v. Commonwealth.

–       Defendant was guilty where he ran from traffic checkpoint, there was heroin found in the car that could be tied to the Defendant there was sufficient evidence to convict Defendant of possession. Blowe v. Commonwealth

–       Where a cocaine pipe was found between the seat and center console, there was sufficient evidence to show the defendant was in possession illegally. Ausby v. Commonwealth.

–       Defendant was guilty of cocaine possession where 1) spoon in his pocket had cocaine residue, 2) cocaine was visibly crystallized, 3) defendant hung his head when officer found the spoon, there was sufficient evidence to find the Defendant guilty.

–       Where he said he packed a tin box and put it in his duffle bag, it was acceptable for a trial court to find him guilty for the paraphernalia later located inside that travel bag. Porter v. Commonwealth.

–       Defendant was guilty of heroin possession where police found 2 bags of about an ounce of the narcotic in his underwear. Fraierson v. Commonwealth.

–       Defendant was not guilty of possession of cocaine where police and evidence could only establish he had been in the home at some point the week prior to the officer’s finding the cocaine at the house. Woodlin v. Commonwealth.

–       Close proximity created only a suspicion of guilt. This wasn’t enough to prove the case beyond a reasonable doubt where the drugs were located on co defendant’s person.

Other Drug Crimes

18.2-248.01 Transporting Drugs into Virginia

Except as authorized in the Drug Control Act (§ 54.1-3400 et seq.) it is unlawful for any person to transport into the Commonwealth by any means with intent to sell or distribute one ounce or more of cocaine, coca leaves or any salt, compound, derivative or preparation thereof as described in Schedule II of the Drug Control Act or one ounce or more of any other Schedule I or II controlled substance or five or more pounds of marijuana. A violation of this section shall constitute a separate and distinct felony. Upon conviction, the person shall be sentenced to not less than five years nor more than 40 years imprisonment, three years of which shall be a mandatory minimum term of imprisonment, and a fine not to exceed $1,000,000. A second or subsequent conviction hereunder shall be punishable by a mandatory minimum term of imprisonment of 10 years, which shall be served consecutively with any other sentence.

Virginia has a very harsh punishment for anyone even one ounce of cocaine into Virginia with a plan to sell it. Any convicted for bringing that much is required to serve at least 3 years in jail. This same penalty applies to any Schedule I or II drug. It also applies to anyone bringing 5 pounds or more into the state. This punishment can be in addition to punishment incurred for related felony charges. A second conviction under this law carries a minimum sentence of 10 years in prison. This may also apply to drugs shipped through the mail.

 

 

18.2-248.03 PWID Methamphetamine

A. Notwithstanding any other provision of law, any person who manufactures, sells, gives, distributes, or possesses with intent to manufacture, sell, give, or distribute 28 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers is guilty of a felony punishable by a fine of not more than $500,000 and imprisonment for not less than five nor more than 40 years, three years of which shall be a mandatory minimum term of imprisonment to be served consecutively with any other sentence.

B. Notwithstanding any other provision of law, any person who manufactures, sells, gives, distributes, or possesses with intent to manufacture, sell, give, or distribute 227 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers is guilty of a felony punishable by a fine of not more than $1 million and imprisonment for not less than five years nor more than life, five years of which shall be a mandatory minimum term of imprisonment to be served consecutively with any other sentence.

It is not common for police to make arrests for possession of meth in Fairfax County. The significant punishment may be a major factor.

18.2-255.2 Sale or Manufacture Illegal near Certain Properties

A. It shall be unlawful for any person to manufacture, sell or distribute or possess with intent to sell, give or distribute any controlled substance, imitation controlled substance, marijuana or synthetic cannabinoids while:

1. Upon the property, including buildings and grounds, of any public or private elementary, secondary, or post secondary school, or any public or private two-year or four-year institution of higher education, or any clearly marked licensed child day center as defined in § 63.2-100;

2. Upon public property or any property open to public use within 1,000 feet of the property described in subdivision 1;

3. On any school bus as defined in § 46.2-100;

4. Upon a designated school bus stop, or upon either public property or any property open to public use which is within 1,000 feet of such school bus stop, during the time when school children are waiting to be picked up and transported to or are being dropped off from school or a school-sponsored activity;

5. Upon the property, including buildings and grounds, of any publicly owned or publicly operated recreation or community center facility or any public library; or

6. Upon the property of any state facility as defined in § 37.2-100 or upon public property or property open to public use within 1,000 feet of such an institution. It is a violation of the provisions of this section if the person possessed the controlled substance, imitation controlled substance, marijuana or synthetic cannabinoids on the property described in subdivisions 1 through 6, regardless of where the person intended to sell, give or distribute the controlled substance, imitation controlled substance, marijuana, or synthetic cannabinoids. Nothing in this section shall prohibit the authorized distribution of controlled substances.

B. Violation of this section shall constitute a separate and distinct felony. Any person violating the provisions of this section shall, upon conviction, be imprisoned for a term of not less than one year nor more than five years and fined not more than $100,000. A second or subsequent conviction hereunder for an offense involving a controlled substance classified in Schedule I, II, or III of the Drug Control Act (§ 54.1-3400 et seq.) or synthetic cannabinoids or more than one-half ounce of marijuana shall be punished by a mandatory minimum term of imprisonment of one year to be served consecutively with any other sentence. However, if such person proves that he sold such controlled substance, marijuana, or synthetic cannabinoids only as an accommodation to another individual and not with intent to profit thereby from any consideration received or expected nor to induce the recipient or intended recipient of the controlled substance, marijuana, or synthetic cannabinoids to use or become addicted to or dependent upon such controlled substance, marijuana, or synthetic cannabinoids, he shall be guilty of a Class 1 misdemeanor.

C. If a person commits an act violating the provisions of this section, and the same act also violates another provision of law that provides for penalties greater than those provided for by this section, then nothing in this section shall prohibit or bar any prosecution or proceeding under that other provision of law or the imposition of any penalties provided for thereby.

This punishment can be placed on top of punishments for related crimes. It is illegal to sale or manufacture within 1,000 feet of a school, at the school, on a school bus, near a bus stop, near or at a community center, and/or near a state facility.

Prescription Drug Fraud

18.2-258.1 Prescription drug fraud

It is illegal to obtain prescription drugs through any means of deceit or deception. Typically, individuals will do this by forging a stolen or counterfeited doctor’s prescription pad. However every case of prescription drug fraud is unique. It is important to effectively communicate to the judge why a crime was committed if there is some valid reason. Many times, a deep rooted addiction causes individuals to make poor decisions regarding prescription drugs.

Prescription Drug Fraud is one of the one Felonys where an individual can get a second chance under Virginia law. Anyone charged with fraud for their first offense may be eligible for a diversion program to avoid a Felony conviction. Faraji has helped many people turn their lives around and avoid potentially devastating consequences of becoming a convicted Felon.

(703) 934-0101

Email faraji@fairfaxcriminallawyer.com

10560 Main Street • Suite 310 • Fairfax, Virginia 22030

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