Possession of Controlled Substance

Possession of a Controlled Substance in Virginia (Va. Code §18.2-250) can be charged as a misdemeanor or a felony.  Someone can be convicted of possession of a controlled substance in Virginia if he knowingly and intentionally possessed a controlled substance without a valid prescription.  Possession of marijuana is criminalized separately under §18.2-250.1.  For more information on possession of marijuana charges in Virginia, click here.

possession of a controlled substance in VirginiaProof of Possession of a Controlled Substance in Virginia

To convict an offender of a charge of possession of a controlled substance in Virginia under Va. Code §18.2-250, the Commonwealth must prove both possession and that the alleged drug was a controlled substance.

Knowing and Intentional Possession

The Commonwealth must prove that the offender both knowingly and intentionally possessed the controlled substance to convict him of a charge of possession of a controlled substance in Virginia.

  • To prove knowledge, the Commonwealth must prove that the defendant knew the substance was illegal and where it was located
  • To prove intent, the Commonwealth must prove that the defendant “asserted dominion and control” over the substance

Va. Code §18.2-250 specifically states that ownership of the property or car where a controlled substance was located does not create a presumption that the owner knowingly and intentionally possessed the controlled substance.  The Commonwealth must prove that the offender knew what the substance was, knew where it was located, and exercised dominion and control over it.

Actual and Constructive Possession

There are two types of possession in Virginia: actual possession and constructive possession.  Actual possession means the controlled substance was found on the offender’s person or in his hands. Constructive possession means that the controlled substance was found in close proximity to the offender.  Proximity by itself is not enough for a conviction unless the Commonwealth can prove that the offender knew what and where the substance was and exercised dominion and control over it.  This can be proven with circumstantial evidence or by the offender’s statements to the police.

Joint Possession

It is possible for more than one person to be convicted of possessing the same drug at the same time.  If the Commonwealth can prove that two (or more) people knowingly and intentionally possessed the controlled substance, all of them can be convicted of possession of a controlled substance in Virginia.  This is called joint possession.

What is a Controlled Substance in Virginia?

possession of a controlled substance in VirginiaVa. Code §54.1-3401 defines controlled substance as “a drug, substance, or immediate precursor in Schedules I through VI of this chapter.”

The Commonwealth must prove the illegal nature of the substance-that it was a controlled substance according to the drug schedules listed in Va. Code §54.1-3446 (Schedule I), Va. Code §54.1-3448 (Schedule II), Va. Code §54.1-3450 (Schedule III), Va. Code §54.1-3452 (Schedule IV), Va. Code §54.1-3454 (Schedule V), and Va. Code §54.1-3455 (Schedule VI).  This is usually done with results from laboratory tests conducted after the offender was arrested. For more information on the schedules of controlled substances in Virginia, click here.  For more information on controlled substances in Virginia, click here.

Amount of Controlled Substance Possessed

An offender can be convicted of possession of a controlled substance in Virginia for possessing any amount of a controlled substance illegally, even the smallest amount.

Penalties for Possession of a Controlled Substance in Virginia

Possession of a Controlled Substance in Virginia (Va. Code §18.2-250) is punished with jail, fines, and driver’s license suspension.  The classification (or schedule) of the drug found determines whether it is a felony or misdemeanor and the associated penalties.

  • Possession of a Schedule I controlled substance is a Class 5 felony.  It is punished with up to 10 years in prison and a fine up to $2500.  Possession of flunitrazepam is penalized as if it were a Schedule I controlled substance (Va. Code §18.2-251.2), and therefore is a Class 5 felony.
  • Possession of a Schedule II controlled substance is a Class 5 felony, punished with up to 10 years in prison and a fine up to $2500.
  • Possession of a Schedule III controlled substance is a Class 1 misdemeanor.  It is punished with up to 12 months in jail and a fine up to $2500.money  Possession of a Schedule III controlled substance by a prisoner (Va. Code §53.1-203(6)) is a Class 5 felony, punished with up to 10 years in prison and a fine up to $2500.
  • Possession of a Schedule IV controlled substance is a Class 2 misdemeanor.  It is punished with up to 6 months in jail and a fine up to $1,000.
  • Possession of a Schedule V controlled substance is a Class 3 misdemeanor.  It is punished with a fine up to $500.
  • Possession of a Schedule VI controlled substance is a Class 4 misdemeanor.  It is punished with a fine up to $250.

Possession of a Controlled Substance in Virginia While Possessing Firearm

Knowingly and intentionally possessing a firearm while unlawfully possessing a Schedule I or II controlled substance is a Class 6 felony. This offense is punished with up to 5 years in prison under Va. Code §18.2-308.4(A).

It is also a felony under Va. Code §18.2-308.4(B) for a person to unlawfully possess a Schedule I or Schedule II controlled substance and simultaneously possess a firearm on or about his person.  There is a mandatory minimum sentence of 2 years in prison which will be served consecutive to any other punishment incurred for the primary drug charge.

Deferred Disposition for First Offenders

Virginia allows for the deferred disposition and dismissal of a first offense possession of a controlled substance in Virginia charge if the offender completes a rigorous probation program.  The program requires a substance abuse evaluation, completion of any required drug treatment, drug and alcohol testing, and community service.  The offender is also required to find or maintain employment.

Va. Code §18.2-251 states that if the offender completes the probationary program successfully, the court will dismiss the charge against him and he will not have a drug conviction.  However, the charge can never be expunged.  This means that the fact that he was arrested, or charged, will be on his criminal record permanently.

If the offender fails to successfully complete the program, the judge will find the defendant guilty of the original drug charge, impose a sentence, and he will be unable to ever participate in the first offender program in the future.