How to beat a possession charge in Virginia is complicated. The drug laws in the Commonwealth of Virginia are very strict. How many years in jail for drug possession? Even a simple possession charge can land you in jail for quite a while. Especially if it is a second or subsequent conviction. Here are the penalties you may face with a drug possession charge in Virginia.
Virginia drug possession is classified by what types of drugs you possess. First I will discuss how to beat a possession charge. Then I will get into some of the penalties that possession of marijuana and felony possession and answer the question of how many years in jail for drug possession.
How to Beat a Possession Charge in Virginia: Marijuana Possession Penalties
Possession charges vary somewhat depending on WHAT you are possessing. But the legal defenses are similar. There are several ways to beat a possession charge in Virginia:
- enter the first offender program for for marijuana program and get the Virginia marijuana case dismissed
- enter a plea agreement with the prosecutor that results in a dismissal of your case
- find a legal defense, and plead not guilty and win your case at trial
- for felony cases, there is also a first offender program and there is also drug court in some courts
2nd Possession Charge in Virginia
First offense charges are different than 2nd offense possession marijuana charges in Va. While a 1st offense marijuana charge is considered an unclassified misdemeanor and carries a maximum of 30 days in jail, a 2nd offense possession charge in Virginia for marijuana is a full class 1 misdemeanor. This means that the range of punishment is the same as assault and battery, trespassing, reckless driving, DUI, and other class 1 misdemeanors. It carries up to a year in jail.
In addition, there is a mandatory license suspension for 2nd possession charges in Virginia. Also, offenders are not eligible for first offense programs. However, some prosecutors will help even on a 2nd offense marijuana charge. And of course, there may be a legal defense to the 2nd offense possession charge.
How to Beat a Possession Charge in Virginia: Virginia first offender possession of marijuana
First-time offenders caught with less than half an ounce of marijuana face a maximum sentence of 30 days in jail and a $500 fine. If it is your second or later conviction, you face up to 12 months in jail. You also face fines of $2,500 for less.
Possessing more than a half ounce may lead to a more serious charge. Police may charge you with Possession with Intent to Distribute (PWID). This charge carries a mandatory minimum of one year in jail.
Virginia has a first offender program for first offense possession of marijuana. This may solve the problem of how to beat a possession charge in Virginia. However, under the Virginia first offender program, the judge must find that evidence is sufficient for a finding of guilt. This means they do not actually find you guilty, but it means you cannot expunge the charge later in life.
Under the Virginia first offender program for marijuana possession, your case gets dismissed after successfully completing the program. What does the program involve?
- you admit or the judge finds evidence is sufficient to find you guilty
- the judge does not actually make a finding of guilty, so you are not convicted
- you are referred to a local probation services in most cases
- you complete 24 hours of community service
- you complete some drug education classes
- you are tested for drugs use during the probationary period
Most courts give you 6 months to a year to complete the first offender program. You must keep a clean record and stay out of trouble while the charge is pending. Upon successful completion your case is dismissed.
Pros: the case gets dismissed
Cons: you cannot expunge the record of the dismissal because evidence was sufficient to find you guilty, you cannot do the first offender program again in the future, you are on probation
How to Beat a Possession Charge in Virginia: Felony first offender and drug court
Felony first offender works similarly to the marijuana first offender. You are on probation, you have to jump through some hoops concerning community service and drug education classes. And you are on probation. If you are successful the case gets dismissed.
Drug court in Virginia is different. Not every location offers a drug court, but many do and they have different rules on who can do it and who cannot.
How to Beat a Possession Charge in Virginia: Agreement with the prosecutor to dismiss your possession case
Another way to solve the problem of how to beat a possession charge in Virginia revolves around a plea agreement with the prosecutor. Many jurisdictions now realize that the public tide is going towards accepting marijuana use and legalization of marijuana. I think Virginia is far from legalizing marijuana, but there is a clear public perception that we have been too harsh with this drug.
Many prosecutors are now offering plea agreements that are better than the first offender program for possession of marijuana in Virginia. This is often referred to as a “General Continuance.” Here is how it works:
- your case gets continued for a period of time
- you never enter a plea
- the judge never makes a finding that evidence is sufficient
- the prosecutor has broad discretion to make you complete conditions
- this often means community service and sometimes drug education classes
- if you do everything, the case gets dismissed
- you CAN expunge the record of this dismissal in the future
Pros: the case gets dismissed, it is eligible for expungement, there is no fine or costs, you are not technically on probation
Cons: sometimes you have a shorter amount of time to do everything you need to do
Usually prosecutors do not offer this for felony drug possession charges. It is usually limited to marijuana charges.
How to Beat a Possession Charge in Virginia: Find a Legal Defense to Virginia Marijuana Possession and Felony Possession Charge
At Leavitt & Martin, we have found legal defenses to these charges frequently. I have won many marijuana and drug cases based on several Virginia and Federal legal issues that helped my client win their case. Legal defenses DO exist, if you use due diligence.
Marijuana Possession Legal Defenses and Felony Legal Defenses
In order to possess marijuana, you need to know what the drug is. In other words, the Commonwealth of Virginia needs to show that you knew the nature and characteristic of marijuana. In addition, someone must exercise dominion and control over the marijuana. If marijuana is found on your person, then possession is presumed.
However, if marijuana is NOT found on you, then you are in a CONSTRUCTIVE POSSESSION situation and the case is more difficult to prove.
How to Beat a Possession Charge in Virginia: Examples of Legal Defenses on Real Cases we Have Won in Court
Constructive Possession in Virginia Marijuana Cases
Leavitt & Martin represented someone in court this week in Chesterfield, Virginia and the case was dismissed. Our client wen to a party. He had been there five minutes. There was marijuana in the open, and everywhere. Our client never admitted that any of the marijuana was his. The judge had to dismiss the case because the Commonwealth could not prove beyond a reasonable doubt that our client possessed the marijuana that was in the home, and it was a LOT of marijuana.
Leavitt & Martin represented a client in Hopewell, Virginia charged with Virginia possession of marijuana. Our client was driving friends home in his car. He got pulled over and the police found marijuana in the passenger side door. The judge dismissed the case because the Commonwealth could not prove beyond a reasonable doubt that our client possessed marijuana.
Mere proximity is never enough to prove constructive possession in a Virginia marijuana case.
Beat a Possession Charge in Virginia Based on Suppression Issue
Leavitt & Martin won a case where the police officer testified that our client drove through an apartment building parking lot so fast that his vehicle lifted into the air when he went over a speed bump. The officer testified that our client drove fast towards a group of kids playing basketball, and at the last second swerved into a parking spot. The officer then initiated a traffic stop. We made a motion to suppress during the trial, based on the argument that the police officer did not have reasonable suspicion to pull over my client because he was on PRIVATE PROPERTY.
What is interesting, is that the passenger in the vehicle went to court BEFORE us and he plead guilty. I told my client that we have a legal defense. So we tried the case and the judge agreed and he DISMISSED the case because the traffic stop occurred on private property. There is a specific reckless driving law that allows police officers to write reckless driving charges on private property but apartment buildings are not on the list.
How Many Years in Jail for Drug Possession? Penalties for Possession of Controlled Substance
Schedule I or II:
- Schedule I and II drugs include heroin, LSD, MDMA, methamphetamines, cocaine, and highly restricted prescription drugs like oxycodone and hydrocodone. In Virginia, possession of Schedule I or II drugs (other than marijuana) is a Class 5 Felony. You face a sentence of up to ten years and a $2,500 fine.
Schedule III: Schedule III drugs are prescription drugs with some potential for abuse. Examples include testosterone and prescription strength acetaminophen. Virginia considers these a Class 1 Misdemeanor, which can mean up to 12 months in jail and a $2,500 fine.
Schedule IV: Possession of schedule IV drugs like Ambien and Klonopin are Class 2 Misdemeanors. Jail time is unlikely, but you could serve up to 6 months and face fines up to $1,000.
Schedule V or VI: Schedule V and VI are drugs like codeine, Lyrica, and other prescription medications with a low risk for abuse. Virginia considers possession of these drugs a Class 3 or 4 Misdemeanors. Possession of a schedule V or VI drug carries no jail time, but you face a fine up to $500.
How Many Years in Jail for Drug Possession? Probation for First Time Offenders
A first offense for possession of marijuana or any controlled substance has the possibility of probation in lieu of jail time. The judge will assign terms and conditions to your probation sentence, including:
- substance abuse assessment, treatment, and/or education programs;
- regular drug testing; and
- community service (typically 24 hours for misdemeanors and 100 hours for felony charges).
The judge may also set other conditions at his discretion. For example, they may require the defendant to maintain steady employment duration probation. If you violate the terms of your probation at any time, you may receive the maximum penalty for your original possession charge.
How Many Years in Jail for Drug Possession? How to Beat a Possession Charge in Virginia: Other Drug Related Charges
Depending on the circumstances surrounding your drug-related arrest, the officer may decide to tack on additional charges. Common charges include:
- Conspiracy and/or attempting to commit a drug related offense;
- Distributing or intent to distribute; and
- Selling or distributing to minors and/or in certain prohibited areas.
If the state charges you with any other drug-related crimes in addition to possession, the penalties will be more severe.
Virginia Drug Laws
Have you ever wondered where Virginia publishes their drug laws? In Virginia, the drug laws are mainly codified in the criminal code title 18.2. However, the exception to this is that paraphernalia is charged under title 54.1. PARAPHERNALIA LAW.
Marijuana is the most common Virginia drug law violated. It is gaining acceptance across the United States for recreational and medicinal use. But right now, it is illegal in Virginia to possess marijuana. The Virginia drug law for marijuana possession is HERE IN VA CODE 18.2-251.
Cocaine, Opium, and other Schedule I/II Drugs are defined as drugs that have a high potential for abuse. The Virginia drug laws regarding possession of Schedule I and II, and other controlled drugs HERE IN VA CODE 18.2-250.
Virginia drug laws that define Schedule I and II and other controlled drugs are found HERE. While possession of marijuana is considered an unclassified misdemeanor for a first offense, it is a class 1 misdemeanor for a second offense or more. In addition, distribution of marijuana can be a felony or a misdemeanor under the Virginia drug laws.
For the vast majority of controlled substances, possession of a controlled substance is usually a Class 5 felony under Virginia drug laws. That means that the charge carries up to 10 years in jail for possessing a controlled substance (in most cases).
How to Beat a Possession Charge in Virginia: Get Legal Help Today.
Facing possession of marijuana or a controlled substance in Virginia? How Many Years in Jail for Drug Possession? You may be able to get your case dismissed. An experienced drug possession lawyer will know the relevant constitutional issues involved. It is important to reach out to an experienced criminal defense attorney as soon as possible. The skilled attorneys at Leavitt & Martin, PLLC will fight for the best possible outcome in your case. Contact us today at (804) 873-4004.