Va. Code §18.2-248.1 criminalizes possession of marijuana with the intent to sell, give, or distribute. It also criminalizes the actual sale, gift or distribution of marijuana. Possession of marijuana with intent to distribute in Virginia is punished the same way as actual distribution. For more information on distribution of marijuana charges in Virginia, click here.
Proof of Possession of Marijuana with Intent to Distribute in Virginia
To convict an offender of possession of marijuana with intent to distribute in Virginia under Va. Code §18.2-248.1, the Commonwealth must prove both possession and intent to distribute. They do not need to prove that the offender intended to distribute IN Virginia, only that he possessed marijuana in Virginia with an intent to distribute anywhere.
Possession: The Commonwealth must prove that the offender knowingly and intentionally possessed marijuana. This requires proof that the offender knew the illegal character of the substance, knew where it was located, and exerted dominion and control over the marijuana. For more information on proving possession of marijuana in Virginia, click here.
Marijuana: It might sound obvious, but the Commonwealth must also prove the substance found was actually marijuana. Analyses conducted in the field upon finding the marijuana, as well as more extensive tests performed in a lab, are usually used for this proof in court.
Intent to Distribute: Unless the offender made admissions, intent to distribute is usually inferred from circumstantial evidence. One of the most important factors used to convict is possessing more marijuana than an amount normally possessed for personal use. However, possession of a large amount of marijuana, by itself, is generally not enough to convict an offender for possession with intent to distribute. It is usually the amount of marijuana, combined with other evidence, that supports a conviction for possession of marijuana with intent to distribute in Virginia. This other evidence includes:
- packaging (the way the quantity is separated into smaller units, which is evidence of an intent to sell those small units)
- drug selling paraphernalia (such as scales and baggies)
- a pager
- large amount of cash
- evidence that someone recently smoked marijuana in the offender’s presence
- lack of evidence that the defendant used marijuana, and/or
- prior intent to distribute offenses.
Distribute: Distribute is defined in Va. Code §54.1-3401 as delivery “other than by administering or dispensing a controlled substance.” Distribution of marijuana in Virginia is interpreted broadly and covers almost any transfer, sale, or gift of marijuana.
Penalty for Possession of Marijuana with Intent to Distribute in Virginia
Possession of marijuana with intent to distribute in Virginia can be a misdemeanor or felony, depending on the amount of marijuana possessed. Third and subsequent convictions have enhanced penalties.
- Less Than One-Half Ounce (Va. Code §18.2-248.1(a)(1)): A possession with intent to distribute less than one-half ounce of marijuana charge in Virginia is a Class 1 misdemeanor. It is punished with up to 12 months in jail, a fine up to $2500, and driver’s license suspension for 6 months.
- One-Half Ounce-Five Pounds (Va. Code §18.2-248.1(a)(2)): Possession with Intent to Distribute more than One-Half Ounce of Marijuana (but less than 5 pounds) is a Class 5 felony. It is punished with up to 10 years in prison, a fine up to $2500, and driver’s license suspension.
- More Than Five Pounds (Va. Code §18.2-248.1(a)(3)): Possession with Intent to Distribute More Than Five Pounds of Marijuana is a felony punished with 5-30 years in prison.
Third Offense Possession of Marijuana with Intent to Distribute in Virginia
A conviction for a third felony possession of marijuana with intent to distribute in Virginia is punished with 5 years up to life in prison and a fine up to $500,000. The Commonwealth can convict under this enhanced penalty if the two prior offenses were felony violations of Va. Code §18.2-248.1 and the two prior conviction dates were before the current offense date. This sentence is consecutive and will be in addition to any other prison term the offender receives.
Possession of Marijuana with Intent to Distribute in Virginia Occurring on or Near School and Public Property (Va. Code §18.2-255.2)
Possessing marijuana with intent to distribute on or near school or public property is a separate felony under Va. Code §18.2-255.2. It is punished with 1-5 years in prison and a fine up to $100,000. A second or subsequent conviction involving more than one-half ounce of marijuana is punished with a mandatory minimum, consecutive sentence of 1 year in prison. The penalty is in addition to, and can be served consecutively with, any other drug charges. The property covered by this statute includes schools, public property within 1,000 feet of a school, a school bus, a school bus stop, public property within 1,000 feet of a school bus stop when it is in use, a public rec center, community center, public library, state facility, or public property within 1,000 feet of a state facility.
Possession of Marijuana with Intent to Distribute More Than 100 Kilograms
A charge of possession of marijuana with intent to distribute in Virginia involving more than 100 kilograms of a mixture or substance containing marijuana in Virginia is punished with a mandatory minimum, consecutive sentence of 20 years up to life in prison and a fine up to $1,000,000 (Va. Code §18.2-248(H)(4)).
Continuing Criminal Enterprise Involving Possession of Marijuana with Intent to Distribute in Virginia
An offender faces a mandatory minimum of 20 years up to life in prison and a fine up to $1,000,000 if he is engaged in a continuing criminal enterprise to possess with intent to distribute at least 100 kilograms but not more than 250 kilograms of marijuana during a 12 month period (Va. Code §18.2-248(H1)). He faces a life sentence with no suspended time and a fine up to $1,000,000 if he was engaged in the enterprise to possess with intent to distribute more than 250 kilograms of a substance containing marijuana during a 12 month period (Va. Code §18.2-248(H2)).
Possession or Use of Firearm While Possessing Marijuana with Intent to Distribute
Possessing, using, or attempting to use a pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while possessing with intent to distribute more than one pound of marijuana is a Class 6 felony under Va. Code §18.2-308.4. This crime is a separate and distinct offense. There is a mandatory minimum, consecutive prison sentence of 5 years that is addition to any punishment received for the underlying drug crime.
First Offender Program
Virginia allows for the dismissal of a first time possession of marijuana with intent to distribute in Virginia charge upon successful completion of a diversion program provided for in Va. Code §18.2-251. The program requires community service, drug and alcohol testing, driver’s license suspension, ASAP classes, payment of fees and costs for the program and testing, and the offender must search for or maintain employment. Upon successful completion of the program, the charge will be dismissed. However, the arrest can never be expunged. If the offender fails to complete the program, not only will he be convicted of the drug offense, but he will be barred from entering the program ever again. For more information on the first offender program in Virginia, click here.