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Possession of a Controlled Substance

Virginia Drug Possession Lawyer

The number of people arrested for drug possession in Virginia is likely to decrease after our state’s legalization of recreational marijuana, but thousands of Virginians are still going to end up in handcuffs for possession of other drugs every year. If you are one of those people, you need to understand two things: You are in a serious legal situation, and you have a right to fight your possession charge.

After an arrest for possession of a controlled substance, you may be looking down the barrel of time behind bars and huge fines. This is not a time to sit back and hope everything gets better. This is a time to take action.

We can help with that. No matter your situation and no matter how hopeless it may feel, a Virginia drug possession lawyer from S&R Law can help. Get in touch with us today, or keep reading to learn what you need to know to beat a possession charge in Virginia.

Virginia’s Drug Possession Laws: What You Need to Know

For non-lawyers and first-time offenders, Virginia’s drug possession laws can be confusing. Whether you have been charged with felony possession of a controlled substance in Virginia or a relatively minor misdemeanor, you need to understand a few key points of the law. See below.

Possession of a Controlled Substance

Virginia Code § 18.2-250 states that, unless you have a valid prescription, it is illegal to possess a controlled substance. First, pay attention to the word “possess” in that definition. The law clarifies that possession can mean everything from carrying a drug in your pockets to having it anywhere in your home or car.

A “controlled” substance is a drug that is regulated under the Controlled Substances Act. This federal law places all substances under one of five classifications that will, in part, determine the severity of the charges you face for possessing a drug. Virginia state law can legalize substances included on this list, such as marijuana.

Factors That Affect Your Possession Charge

Not all drug possession charges in Virginia look the same. That’s because various factors can affect the severity of the charge. Here are some of the factors that could affect your possession charge:

  • The type of drug. The classification of the drug you’re accused of possessing can affect whether you receive a felony or misdemeanor charge, as well as the class of felony or misdemeanor. For instance, heroin and LSD possession can result in a Class 5 felony charge. Meanwhile, possession of prescription drugs like Xanax and Valium can lead to a Class 3 misdemeanor.
  • The amount. If you are accused of having a particularly large amount of a controlled substance in your possession, your charge may become more serious. You might be charged with possession with intent to distribute, which means you allegedly intended to sell or give the drugs to someone — a much more serious charge.
  • Your prior offenses. A felony drug charge for a first-time offender may not threaten the same penalties as a felony drug charge for a fourth-time offender. Criminal history may make your possession charge more severe.

A Fairfax drug possession attorney can help you understand all of the factors that could affect your possession case.

Penalties for Drug Possession in VA

If it isn’t already clear that Virginia takes drug possession seriously, the following criminal penalties for drug possession will make that abundantly clear for you:

  • Possession of a Schedule I or II drug. This is a Class 5 felony punishable by one to 10 years in prison and up to $2,500 in fines.
  • Possession of a Schedule III drug. This is a Class 1 misdemeanor punishable by up to a year in jail and up to $2,500 in fines.
  • Possession of a Schedule IV drug. This is a Class 2 misdemeanor punishable by up to six months in jail and fines up to $1,000.
  • Possession of a Schedule V drug. This is a Class 3 misdemeanor punishable by up to $500 in fines.
  • Possession of a Schedule VI drug. This is a Class 4 misdemeanor punishable by up to $250 in fines.

To learn more about drug schedules and your specific charge, see the Drug Enforcement Administration’s list of drug schedules and contact a drug possession lawyer in Fairfax.

How to Beat a Possession Charge in Virginia

Facing potential penalties like those described above, those accused of drug possession have every reason in the world to fight their charges. Fortunately, it is possible to beat a possession charge in Virginia. With the right defense, deferred disposition, and sound legal advice, you may have a shot.

Possible Defenses for Drug Possession

Building a strong legal defense is often the key to beating a drug possession charge. Every case demands a unique defense, but some common defenses for drug possession charges include the following:

  • Showing that you have a valid prescription for the drugs
  • Proving that you were unlawfully searched
  • Demonstrating that the drugs in question were not actually yours
  • Suggesting that you were a victim of police entrapment
  • Showing that the evidence against you was improperly handled

Your Virginia drug possession attorney can help you find the perfect defense for your unique situation.

The 251 Disposition

Even when it seems like no defense will actually work, there may still be a way out. It’s commonly called the 251 Disposition — a reference to Virginia Code § 18.2-251. This law lays out an alternative to being tried for a first-time drug offense. Basically, the court agrees to defer proceedings against you for a specific period of time, and if you meet all of the conditions during that time, your case can be dismissed.

You have to meet several conditions to be eligible for the 251 Disposition, so talk to a drug possession attorney in Fairfax about your eligibility.

Don’t Talk Without a Lawyer

Sometimes, people who are arrested for drug possession had a chance to beat their charge at the time of their arrest. But by the time they’re done talking to the police, that chance is virtually gone. That’s because police can expertly manipulate you into saying things that will incriminate you — regardless of whether you’re actually guilty.

That is why it is most often best not to speak to police without your attorney present. You have the right to an attorney and a right to remain silent. Exercising them both can be key to your ability to beat your possession charge.

251 Disposition, Also Known as ‘The First Time Offenders Program’

If you are facing a marijuana charge for the first time, you may be eligible for a so-called “251 disposition,” so-called because the Virginia Assembly authorized the programs under Virginia Code section 18.2-251. These types of programs allow a case to be dismissed if the offender goes through probation and treatment. Under such a program, a person is required to perform community service, remain drug and alcohol free, and complete some drug education. In addition, the person will lose their driver’s license for six months, although they are usually eligible for a restricted license. If these things are all done successfully, the charge is dismissed after one year.

While this is a great program, a good lawyer knows that it is only a fall-back if nothing else works. It is a huge pain for the person undergoing the program and even though there is no conviction, there will always be a record that the person was charged with possession.

Medical Marijuana

Even though some states have legalized possession of marijuana, this does not mean that you can legally buy marijuana in another state and bring it into Virginia. However, there might be an exception for a person who has a valid prescription from an out-of-state doctor. As of right now, Virginia law allows a person to legally obtain marijuana from a doctor. Va Code 18.2-250.1. However, at the same time, there is no law that allows doctors to prescribe or provide marijuana, so a person still cannot really have it legally for medical purposes in the Commonwealth. The law says nothing about whether you could obtain it legally from a doctor outside the state and then bring it into Virginia, so there might be an exception there. Courts disagree on what exactly that means, so it is important to have a lawyer that knows the local courts very well if this possible exception applies.

Constructive Possession

The concept of “constructive possession” is an important one in many marijuana cases. The basic idea is that a person can still be in “possession” of something even if that thing is not in their actual possession, like in their hand or pocket. But in this type of situation, a person can only be found guilty if they knew the marijuana was there and actually had control over it. Simply being close to marijuana is not enough, according to the Virginia Supreme Court. Lane v. Commonwealth, 223 Va. 713, 292 S.E.2d 358, 1982 Va. LEXIS 258 (Va. 1982); Hambury v. Commonwealth, 3 Va. App. 435, 350 S.E.2d 524, 1986 Va. App. LEXIS 379 (Va. Ct. App. 1986).

For example, imagine that a police officer pulls a person over for speeding and then smells something he thinks is marijuana. He orders the driver out of the car and searches inside, only to find a small bag of weed under one of the seats. The question is, did the driver know it was under the seat, and did he have control over it? Well, if the car is still full of smoke and the bag of weed was found under the driver’s seat, a court will probably decide that the driver was in possession. However, if there was only a faint smell, the marijuana was found under the back seat, there were three other people in the vehicle, and the car was actually owned by the driver’s brother, the court will probably decide that the driver did not necessarily know it was there, or at least that it was outside his control.

These cases always come down to the smallest little details, so make certain to get a lawyer who specializes in this sort of law if you think this defense might apply to your case.


Under Virginia law it is illegal to have possession of needles, pipes or other devices for the purpose of taking drugs, including marijuana. Va Code 54.1-3466. This is a criminal charge and the punishment can be up to a year in jail and $2500 fine. However, courts often only hand out small fines for this charge, especially on a first offense. In addition, since there is no license suspension at all, the inconvenience associated with a paraphernalia conviction is often much less than that of a marijuana possession. Even if you are charged with possession of marijuana, an experienced attorney may be able to convince a prosecutor to amend the charge to possession of paraphernalia and save you lots of hassle. For this reason, it is important to discuss with your lawyer not only the details of your case, but also your priorities regarding possible outcome.

Contact a Drug Possession Attorney in Virginia

A drug possession charge is serious, but it isn’t the same thing as a conviction. You have a chance to build a strong legal defense and put this all behind you. Fighting a possession charge isn’t easy, but with the right legal allies on your side, it is possible.

Thanks to the U.S. Constitution, you have the right to legal counsel. Now, it’s up to you to use that right to make the right choice — a Virginia drug possession attorney who can actually give you a shot at beating your possession charge.

To learn more about how S&R Law can help, schedule a free consultation. Call us at 703.273.6431 or reach out online.

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