Possession of Firearm While Committing Certain Drug Offenses

Possession of a firearm in Virginia while possessing, distributing, manufacturing or possessing with intent to distribute controlled substances or marijuana is a felony and can be punished very severely.  It is a separate and distinct felony, and is a additional charge to any other drug or firearm offense.

possession of a firearm in VirginiaPossessing, using or displaying a firearm in a threatening manner while in possession of certain drugs is charged under Va. Code §18.2-308.4.  Possession of a firearm in Virginia while committing a drug offense (Va. Code §18.2-308.4) can be violated in one of 3 ways: possessing a firearm while in possession of a Schedule I or II controlled substance, possessing a firearm on or about the person while in possession of a Schedule I or II controlled substance, or possessing, using, attempting to use, or displaying a firearm in a threatening manner while selling, distributing, manufacturing or possessing with intent to sell, distribute, or manufacture a Schedule I or II controlled substance or more than one pound of marijuana or attempting to commit any of these offenses.

Possession of A Firearm in Virginia While in Possession of Schedule I or II Controlled Substance

Possession of a Schedule I or II controlled substance while simultaneously possessing a firearm is guilty of a separate felony under Va. Code §18.2-308.4(A).  To convict an offender of possession of a firearm in Virginia while possessing a Schedule I or II controlled substance, the Commonwealth must prove both unlawful possession of the controlled substance, knowing and intentional possession of a firearm, and a connection between the possession of the drugs and firearm.

Possession of Controlled Substance: The Commonwealth must prove that an offender knowingly and intentionally possessed a controlled substance unlawfully.  Knowing and intentional possession means the offender knew what the substance was, knew that it was present, and exerted dominion and control over it.  The Commonwealth must also prove that the substance was in fact a controlled substance listed in Schedules I or II of the Drug Control Act.  For more information on possession of a controlled substance in Virginia, click here.

Simultaneous Possession of Firearm: The Commonwealth must prove the offender possessed a firearm at the time he possessed the Schedule I or II controlled substance.  Like possession of the controlled substance, possession of the firearm can be actual or constructive.  The firearm does not need to be operable, but for purposes of this statute, the firearm must have been designed to fire a projectile by means of an explosion.

This offense is a Class 6 felony, which is punished with 1-5 years in prison or up to 12 months in jail and a fine up to $2500.

Possession of A Firearm in Virginia On or About the Person While Possessing Schedule I or II Controlled Substance

It is also a Class 6 under Va. Code §18.2-308.4(B) felony for an offender to simultaneously possess a firearm on or about his person while unlawfully possessing a Schedule I or II controlled substance.  This offense is punished with up a  mandatory minimum, consecutive 2 year prison sentence and a maximum of 5 years.  The Commonwealth must prove possession of a Schedule I or II controlled substance, possession of a firearm, and the firearm was on or about his person.

Possession of Schedule I or II Controlled Substance: The Commonwealth must prove that an offender knowingly and intentionally possessed a controlled substance unlawfully.  This means the offender knew what the substance was, knew that it was present, and exerted dominion and control over it.  The Commonwealth must also prove that the substance was in fact a controlled substance listed in Schedules I or II of the drug control act.  Click here for more information on possession of a controlled substance in Virginia.

Possession of Firearm: The Commonwealth must prove the offender possessed a firearm at the time he possessed the Schedule I or II controlled substance.  Possession of the firearm can be actual or constructive.  The firearm does not need to be operable, but the firearm must have been designed to fire a projectile by means of an explosion.

On or About His Person: On or about the person basically means a firearm is so connected with the person that it is easily accessible for use or surprise.  In Virginia, an offender possesses a firearm on or about his person when he is aware of the presence and character of the firearm, had dominion and control over the firearm, and the firearm was readily accessible for prompt and immediate use.

Possession, Use, Attempt to Use, Display Firearm in Threatening Manner

Possessing, using, or attempting to use a pistol shotgun, rifle, or other firearm or displaying a firearm in a threatening manner while committing or attempting to commit certain drug offenses is a separate felony.  The offenses that this statute applies to include distributing, selling, manufacturing or possessing with intent to distribute, sell or manufacture a Schedule I or II controlled substance or more than one pound of marijuana.

This offense is a separate and distinct Class 6 felony.  There is a mandatory minimum, consecutive prison sentence of 5 years that is addition to any punishment received for the underlying drug crime.

To convict an offender of possession of, the Commonwealth must prove:possessing-a-firearm-while-possessing-a-schedule-i-controlled-substance-in-virginia-with-intent-to-distribute-is-a-class-6-felony

  • possession, use, attempt to use, or display in a threatening manner
  • a pistol, shotgun, rifle or other firearm
  • while committing or attempting to commit
  • the illegal distribution, sale, or manufacture of a Schedule I or II controlled substance or more than one pound of marijuana or possession with intent to distribute, sell, or manufacture a Schedule I or II controlled substance or more than one pound of marijuana.

For more information on selling/distributing a controlled substance in Virginia, click here.

For more information on manufacturing a controlled substance in Virginia, click here.

For more information on possession of a controlled substance in Virginia with intent to distribute, sell or manufacture, click here.

For more information on selling/distributing marijuana in Virginia, click here.

For more information on manufacturing marijuana in Virginia, click here.

For more information on possessing marijuana in Virginia with intent to distribute, sell or manufacture, click here.