Drug Defense Attorney
Drug charges carry a wide range of serious penalties, including jail time, fines, loss of driving privileges and required counseling, education and/or therapy. Much like DUI cases, drug offenses often involve complex law enforcement search and seizure action issues, as well as scientific and technical examination of drugs seized and tested by crime laboratories.
Marijuana is legal in other states. Isn’t it legal to possess marijuana in Virginia?
Many states have legalized or decriminalized possession of marijuana but it is still illegal to possess marijuana in the Commonwealth of Virginia and you can be charged with a crime under certain circumstances. Decriminalization of marijuana possession does not mean that it is legal to possess marijuana.
Marijuana possession for personal use is decriminalized in Virginia effective July 1, 2020 – it is not legal to possess, however, and you can still be charged with a crime in certain situations. Click here to learn more.
What types of criminal charges can I receive for possession of drugs?
In Virginia, drugs are classified according to schedules. Those drugs which are classified in schedules in Virginia law are referred to as controlled substances. A controlled substance is generally a drug or chemical whose manufacture, possession, or use is regulated by a government, such as illegally used drugs or prescription medications that are designated by law. In classifying drugs into schedules, Virginia does not rely upon federal law to how controlled substances should be scheduled. Click here to view the statutes that show what schedule a controlled substance is assigned.
Simple possession of a Schedule I or II Drug (Controlled Substance) in Virginia is a Class 5 Felony punishable by up to 10 years in prison. Simple Possession of Schedule III, IV, V, or VI drugs are treated as misdemeanors. It is always illegal to possess a Schedule I drug. In comparison, some schedule III and IV drugs may be legal to possess with a prescription.
Leary Law handles cases involving Schedule 1, Schedule 2 and Schedule 3 substances, including but not limited to marijuana, cocaine, crack, PCP, LSD, methamphetamine and Ecstasy as well as cases involving prescription medications such as Percocet, Valium, Xanax, codeine and oxycodone.
Virginia Code Section 18.2-250 is the statute that criminalizes unlawful drug possession.
Don’t I have to have drugs on my person or in my vehicle when I am arrested to be charged with illegally possessing a drug?
What constitutes possession of a drug of controlled substance is not always an easy question to answer. Virginia law makes it illegal to possess certain controlled substances (or drugs). To be convicted of illegal possession of a controlled substance, the prosecutor does not have to prove who owns the drug, who bought the drug, or who was actually going to use the drug. Instead, the prosecutor must prove that you:
- knowingly and intentionally possessed a controlled substance (drug).
- knew or should have known the nature and characterof the drug you possessed
Proof of possession falls into two categories – actual possession and constructive possession.
Having drugs in your pocket, in your hand, in your bag or a container you are carrying is considered being in actual possession of a drug. Actual possession involves situations where drugs are found on the person. When you are found in actual possession of a drug, the law infers that you should also know the nature and character of the substance that is found on your person. Evidence may also be submitted to rebut this inference and instead, show that you did not know what you had in your possession at the time of your arrest.
As an example, you borrowed your brother’s backpack. You did not know the backpack contained a bag of heroin. You are in possession of the drug, but you may not be found guilty of the crime of possession when you did not have any knowledge that the drug was in the bag you are carrying. The facts of your case are very important to understanding what you can and cannot be held responsible for when charged with a crime.
Constructive possession requires evidence of the location of the drug but also the circumstances of how someone came to be near or around the drug. With constructive possession, the drugs are not directly on your person. To be convicted of constructive possession, a prosecutor must show that you exercised dominion and control over the drugs. In constructive possession cases, the prosecutor must still prove that the possession was knowing and intentional and that you knew the nature and character of the substance.
- Did the individual charged have knowledge of the substance’s nature and character? Did the person know, or have reason to know, they were in possession of an illegal substance? They do not need to know the exact type of substance, however. It would not matter, for example, that a suspect thought he possessed heroin but actually possessed cocaine.
- Did the individual knowingly exercise dominion and control over the drug. Whether a person could access or do something with the drugs he/she is accused of constructively possessing. If the person had no authority to use the drugs, move them, or do anything else with them, then the person does not have dominion and control over the drug.
In deciding whether constructive possession has been proved, all of the circumstances present must be considered. If the government fails to prove either aspect necessary for constructive possession (i.e., dominion and control or knowledge of the illegal character of the drug), then the individual should be found not guilty.
Virginia law recognizes that a suspect’s mere presence in an area where drugs are is not enough on its own to prove the suspect is constructively possessing drugs. However, in addition to the suspect’s presence, the court will consider things like whether the drugs were in plain view of the suspect or whether the suspect would have been able to detect the drugs because of an overwhelming smell or other obvious characteristic. Courts will also look at the behavior and statements of the individuals. Other examples of evidence considered include furtive movements, like the appearance of something being hidden in the vehicle or thrown out of the vehicle, are often strong circumstantial indicators of knowledge and dominion and control. If an individual admits that they knew the drugs were present will often seal the deal on the issue of constructive possession.
There are numerous factors other than the ones discussed here that play into the determination of whether a suspect is in constructive possession of a drug. If you have been charged with a drug possession or distribution charge, but the drugs were not on you, then there may be a number of legal issues with the government’s case. Our drug offense attorneys are experienced in evaluating and defending such issues and can help you fight your charge. Give us a call today to see how we can help.
Drug Residue – Can I still be charged or convicted?
You may be thinking, “But I only had residue!” I can’t use residue!” Surely if you cannot use the drug for the intended purpose – getting high – you cannot be charged. Unfortunately, that is not the case.
Drug residue is treated in the same manner as if a person possessed the drug itself. The quantity of the drug does not change whether a person can be charged with a crime. Drug users often carry paraphernalia used to consume drugs. Marijuana users may have wraps, bowls, bongs, or a host of other devices. A cocaine user may have a bowl, bill, or straw. Heroin users may have spoons and needles. Most drug users also are not the most scrupulous when it comes to cleaning, disinfecting, and making sure there is no drug residue left on their paraphernalia. Even if you are found with drug residue, you can still receive a criminal charge and may still be eligible to receive a criminal conviction for a misdemeanor or felony drug possession charge.
In Virginia and in federal court, that argument is not a good one. If a lab test is performed on the residue, and the residue is returned as a prohibited substance, then the charge would be proper. However, just because there is residue, does not mean the drug is present in a form in which you can receive a conviction. Virginia law makes illegal possession of specific drugs. Those drugs are defined by their chemical composition. This means that if the residue that remains in the paraphernalia or elsewhere does not match the required chemical composition, the prosecutor may not be able to prove possession from the residue seized from you.
If you have been charged with marijuana possession or another drug charge, contact the attorneys at Leary Law PC today to understand what can be done to defend you.
Federal Narcotics Charges
At the federal level, drug cases often involve incidents which cross state lines and involve participation in drug conspiracies. These types of cases carry very serious potential penalties. To address your case, we recommend that you meet with an experienced drug defense attorney to understand your constitutional rights, to determine if possible violations of those rights have occurred and to explore potential legal defenses and familiarize and prepare yourself for the severe penalties that you face if convicted.
Juvenile Drug Offenses
Juveniles charged with drug crimes face the same charges as adults with the same potential penalties. A vigorous and zealous defense of a juvenile drug offense prosecution involves hiring experienced counsel who can help you understand all aspects of your case and all options available to you in the resolution of your charges.
Can I be convicted for a First Offense Drug Possession charge?
If you receive a simple possession of a controlled substance (drug or narcotic illegal to possess) and you have never been charged or convicted of any prior drug offense, you will likely be eligible for deferred finding which is also known as a “251 disposition.” The 251 program receives its name from the statute which gives the court the power to treat a first offender in a special way. (Click here to read the deferred disposition statute.)
The 251 program requires you to successfully complete the Alcohol Safety Action Program (ASAP) and at least 24 hours of community service. At the end of the program, if you have remained of good behavior and had no other violations of law, your charge could be dismissed. You would be responsible for paying your court costs and the cost of any program to which you are referred. This program is also available for simple possession charged as a felony – cocaine, heroin, PCP, ecstasy, fentanyl or as a misdemeanor. If you fail to complete the 251 program, you could receive a conviction, and for Schedule I or II drugs, this means a felony conviction.
What is the difference between DISTRIBUTION AND PWID (POSSESSING WITH THE INTENT TO DISTRIBUTE)?
Distribution and Possession with Intent to Distrbute (PWID) are punished the same. If you are charged with Distribution or PWID of a Schedule I or II drug, the penalty range is 5 to 40 years and a fine of up to $500,000.00. The quantity of the drug can also impact the sentence imposed by the court. The enhanced penalty could require mandatory prison time. (Click here to read Virginia’s drug dealing statute.) For charges of Distribution or PWID regarding marijuana, the penalties are less severe. (Click here to read Virginia’s marijuana distribution statute.)
Distribution charges arise from hand-to-hand exchange of drugs or marijuana for money. A dealer delivers drugs to another person. It does not matter under the law whether the drugs were sold, given as a gift, or were exchanged for some other consideration. If no money is exchanged, the transaction may be considered an accommodation. This distinction creates an opportunity for a different punishment range. If you can prove by a preponderance of the evidence that you were only accommodating another person in distributing the drugs (meaning your received no money in exchange for your action), the range of punishment can be drastically reduced.
So, how do the police know when a drug deal has occurred? And how do they confiscate the drugs? Most of the time, the dealer has sold to an undercover police officer or to a confidential informant. Typically several hand-to-hand deals have occurred before the police finally make an arrest and charge the dealer. There are defenses to these cases, but typically the facts are pretty clear cut. What can you do if you are charged? It is possible to work with the police and assist them; if you do that your charges could be reduced or potentially dropped. Besides technical defenses, like challenging chain of custody of the drugs from the time they are seized until submitted to the lab for testing, there are constitutional defenses (as discussed above).
PWID cases, like constructive possession cases, can be more difficult for the Commonwealth to prove. Unless a person has confessed, there must be some other evidence besides the drug itself to show it was possessed but intended ultimately for distribution. Factors to support a PWID charge that police look for include: weight or quantity of the drug, large quantity of baggies, scales, large amounts of cash, owe sheets or documents showing drugs deals, and what is on your phone. Police will typically seize your phone and seek a search warrant to determine whether you have text messages and the like indicative of drug dealing.
The defenses to PWID and Distribution are the same as the defenses for possession. Actual possession versus constructive possession, nature & character, and the Fourth Amendment are at issue. Additionally, even if you confessed to the police, that confession may not be admissible. That issue turns on whether you were in custody or under arrest and, if you were, whether you were advised of your rights under Miranda (pursuant to the 5th Amendment). These are all issues to discuss with a skilled attorney.
If you have been charged with a drug offense in Fairfax County or elsewhere in Northern Virginia, or fear charges may be coming, contact us today for a free consultation. Christie Leary is an experienced Fairfax Criminal Defense, Drug Possession or Distribution, Attorney in Fairfax County.
Types of Drug Offense Cases That Our Fairfax Drug Offense Attorneys Handle
The consequences of a drug conviction can be overwhelming and life altering. Leary Law, PC has a record of success in effectively representing people charged with these crimes. We are here to provide you with guidance and help you understand any available defenses so that you achieve the best possible outcome given your situation. Below are some of the types of drug crimes we handle:
- Marijuana possession. Under Virginia Code § 18.2-250.1, it is illegal to knowingly or intentionally possess even small amounts of marijuana that were not obtained through a prescription or other permitted means. A first offense is a Class U—or unclassified—misdemeanor, with a possible sentence of up to 30 days in jail and a $500 fine. A second offense is a Class 1 misdemeanor punishable by up to 12 months in jail and a $2,500 fine.
- Sale of marijuana. Virginia Code § 18.2-248.1 provides that it is a crime to possess any amount of marijuana with the intent to deliver it. If a person is arrested with up to one-half ounce of marijuana, he may be charged with a Class 1 misdemeanor, but larger quantities up to five pounds may result in a Class 5 felony charge. A Class 1 misdemeanor conviction can result in a jail sentence of 12 months and a $2,500 fine. A felony conviction for up to five pounds can result in a prison sentence of up to 10 years in prison and a $2,500 fine.
- Drug possession. Under Virginia Code § 18.2-250, it is illegal to knowingly possess a controlled substance without a valid prescription or through other authorized means. The penalty upon conviction will be determined by the classification of the controlled substance. For example, possession of a Class I or Class II controlled substance is a Class 5 felony with a sentence of up to 10 years in prison or, at the discretion of the judge or jury trying the case, up to 12 months in jail and a $2,500 fine.
- Drug distribution. It is illegal to manufacture, sell, give, or distribute controlled substances under Virginia Code § 18.2-248. As with possession of an illegal drug, the penalty will be based on the substance’s classification. Under Virginia drug laws, a person convicted for a first offense may be sentenced to 5 to 40 years in prison and a fine of up to $500,000.
- Conspiracy to distribute. Virginia Code § 18.2-256 makes it a crime to conspire to commit any drug-related offense or violation of the Drug Control Act. If convicted, a person would face the same harsh penalties of the offense he conspired to commit.
- Forfeiture of drug-related assets. Under Virginia drug laws, if a person is suspected of being involved in drug trafficking, his property can be seized and forfeited to the police—even if he is not convicted. This can be done pursuant to criminal or civil forfeiture proceedings. Cash, cars, homes, and other property may be taken.
What defenses are available for drug possession charges
Drug charges are considered to be some of the most serious charges. This is especially true if an accused offender is charged with a felony drug crime or has a history of drug charges. However, drug charges are not simple and straightforward. There are sometimes explanations for having a certain drug on your person or it might be possible that the drugs are not yours and you had no idea they were placed in your vehicle or home by another party. Because there can be a wide variety of explanations, it is important for defendants to note their defense options.
What defenses are available for drug possession charges? When a person is accused of drug possession, there is either an assumption that the accused possesses it for personal use or has the intent to sell it to others. In either case, it is possible to assert a defense regardless if you are facing state or federal drug charges.
The most common defense strategy against drug possession is claiming there was an unlawful search and seizure. The Fourth Amendment of the Constitution guarantees the right to due process, which also includes what makes a search and seizure prior to an arrest lawful. While authorities are able to seize items in plain view, they would not be able to look in places they do not have permission to via consent or search warrant. Thus, if evidence is collected in violation of a person’s Fourth Amendment, this evidence could be suppressed.
Another common defense strategy is asserting that the drugs in question belonged to someone else. It is possible that someone had them in your vehicle or home without your knowledge. A defendant must knowingly possess drugs in order to be convicted of a drug possession charge. Other defense options include proving that the recovered substance is in fact what they believe it is, seeking a crime lab analysis, asking the prosecution to produce the actual drugs involved in the charge or claiming that the drugs were planted or was a result of entrapment. Finally, a defendant could assert that the drugs in question have a medical exception.
Being accused of a drug crime is not an easy predicament to be in. However, it is a situation defendants can navigate through. Asserting a defense is imperative, no matter how grave your situation appears. This does not only ensure your rights are protected but also helps you with the reduction or dismissal of the charges against you.
Will I go to jail if I am convicted of a drug crime?
When facing drug charges in Virginia, there is the possibility of serious consequences that can have a long-term influence on a person’s life in the event there is a conviction. There are, however, options to reduce charges depending on the severity of the offense. It is possible that probation will be available under the law, and that the harshest punishments can therefore be avoided.
When it comes to drug charges, if it is an individual’s first offense, there is the chance that he or she may be placed on probation. This includes charges relating to narcotics, marijuana, stimulants, depressants or hallucinogenic drugs. Whether the individual has pleaded guilty or not guilty, being placed on probation defers the final judicial proceedings. The individual might be compelled to be assessed for substance abuse or to enter a treatment/education program. This depends on how the issue is viewed.
If placed into a program, it can be located in any judicial district. These programs are provided either by the Department of Behavioral Health and Developmental Services or the Department of Corrections of the state. It can also be a community-based program or the Alcohol Safety Action Program (ASAP) of Virginia. It is required that the person who is enrolled in the program in lieu of other penalties pay all or some of the costs. That includes testing, assessing, screening and treatment. However, this depends on the person’s ability to pay.
There are conditions to probation. The person must complete treatment, stay free of substance abuse while on probation and agree to be tested, try to get employment and remain employed and perform community service. If the terms of the probation are violated, the individual will be found guilty and will have to face the associated penalties. A legal professional experienced in representing those facing drug charges can help with pursuing ways to reduce charges and receive probation.