Controlled Substances

controlled-substance-charges-in-virginia-include-possession-distribution-manufacture-and-paraphernalia-chargesVirginia controlled substance charges include possession, possession with intent to distribute, distribution, manufacturing, and transportation.  Penalties or charges involving a controlled substance in Virginia generally depend on the Schedule of the controlled substance, the number of the offender’s prior convictions, whether minors were involved, and whether the prohibited act occurred on certain property.  Additionally, there are increased penalties for offenses involving specified amounts of certain controlled substances.

What Is A Controlled Substance in Virginia?

A controlled substance in Virginia is defined in Va. Code §54.1-3401 as “a drug, substance, or immediate precursor in Schedules I through VI” of the Drug Control Act.  Controlled substances are classified into schedules based on their potential for abuse and accepted medical use.  Penalties for a number of offenses vary based on the schedule  of the controlled substance.  Drugs in Schedules I and II have the highest potential for abuse and therefore a number of charges involving these controlled substances in Virginia have the harshest penalties.

Schedules of Controlled Substances in Virginia

Schedule I controlled substances have a high potential for abuse and have no accepted medical use.  Schedule II controlled substances have a high potential for abuse which may lead to severe psychic or physical dependence, but have some accepted medical use.  Schedule III controlled substances have a lower potential for abuse than Schedule I and II controlled substances, and the abuse may lead to moderate to low physical dependence or high psychological dependence.  Schedule IV controlled substances in Virginia have a low potential for abuse which may lead to limited physical or psychological dependence and have accepted medical use.  Schedule V controlled substances in Virginia have a low potential for abuse which may lead to limited physical or psychological dependence lower than those in Schedule IV and have accepted medical use.  Schedule VI controlled substances have the lowest potential for abuse and include a number of other substances that are not specifically included in the other Schedules.

For more information on the 6 Schedules of controlled substances in Virginia, click here.

Possession of A Controlled Substance in Virginia

possession-of-a-controlled-substance-in-virginia-is-punished-based-on-the-schedule-of-the-drugPossession of a controlled substance in Virginia is criminalized under Va. Code §18.2-250.  To convict an offender of possession of a controlled substance in Virginia, the Commonwealth must prove that the offender knowingly and intentionally possessed a controlled substance.  The Commonwealth must also prove that the substance in question was in fact a controlled substance according to the Drug Control Act.

Possession of a controlled substance in Virginia is punished based on the Schedule of the controlled substance:

  • Possession of a Schedule I or Schedule II controlled substance in Virginia is a Class 5 felony, punished with up to 10 years in prison and a fine up to $2500 (Va. Code §18.2-250(A)).
  • Possession of a Schedule III controlled substance in Virginia is a Class 1 misdemeanor, punished with up to 12 months in jail and a fine up to $2500  (Va. Code §18.2-250(A)).
  • Possession of a Schedule IV controlled substance in Virginia is a Class 2 misdemeanor, punished with up to 6 months in jail and a fine up to $2500  (Va. Code §18.2-250(A)).
  • Possession of a Schedule V controlled substance in Virginia is a Class 3 misdemeanor, punished with a fine up to $500  (Va. Code §18.2-250(A)).
  • Possession of a Schedule VI controlled substance in Virginia is a Class 4 misdemeanor, punished with a fine up to $250  (Va. Code §18.2-250(A)).

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

Possession of A Controlled Substance in Virginia with Intent to Distribute/Sell/Manufacture

Possession of a controlled substance in Virginia with intent to distribute or manufacture is criminalized under Va. Code §18.2-248.  To convict an offender of possession of a controlled substance in Virginia with intent to distribute, sell or manufacture, the Commonwealth must prove:

  • possession
  • intent to distribute, sell, give or manufacture, and
  • the substance was in fact a controlled substance.

Possession means knowing and intentional possession.  Intent to distribute is commonly proven through circumstantial evidence, usually the quantity of the controlled substance and the way in which it was packaged.  For more information on how the Commonwealth can prove intent to distribute, click here.

  • Possession of a Schedule I or II controlled substance with intent to distribute, sell, manufacture or give is punished with 5-40 years in prison and a fine up to $500,000 (Va. Code §18.2-248(C)).  A second offense is punished with 5 years up to life in prison with a 3 year mandatory, consecutive minimum and a fine up to $500,000 (Va. Code §18.2-248(C)).  A third offense is punished with a mandatory minimum consecutive sentence of 10 years up to life in prison and a fine as high as $500,000 (Va. Code §18.2-248(C)).
  • Possession of a Schedule III controlled substance (other than an anabolic steroid) with intent to distribute, sell, manufacture or give is a Class 5 felony.  This offense is punished with up to 10 years in prison and a fine up to $2500 (Va. Code §18.2-248(E)(1)).
  • Possession of a Schedule IV controlled substance with intent to distribute is a Class 6 felony, punished with up to 5 years in prison and a fine up to $2500 (Va. Code §18.2-248(E)(2)).
  • Possession of a Schedule V or Schedule VI controlled substance in Virginia with intent to distribute is a Class 1 misdemeanor.  It is punished with up to 12 months in jail and a fine up to $2500 (Va. Code §18.2-248(F)).

For more information on the charge of possession of a controlled substance in Virginia intent to distribute, click here.

Distributing and Manufacturing A Controlled Substance in Virginia

Distribution of a controlled substance in Virginia means “to deliver other than by administering or dispensing a controlled substance” (Va. Code §54.1-3401).  Sale of a controlled substance in Virginia is defined as  including “barter, exchange, or gift, or offer therefor, and each such transaction made by any person, whether as an individual, proprietor, agent, servant, or employee” (Va. Code §54.1-3401).  Give is included within the definition of sale for purposes of controlled substance offenses in Virginia.  Manufacturing a controlled substance in Virginia is defined in Va. Code §54.1-3401 as “the production, preparation, propagation, conversion, or processing of any item regulated by this chapter, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container.”

The penalties for distributing or manufacturing a controlled substance in Virginia depend on the schedule of the controlled substance and the number of the offender’s prior convictions.

  • Distributing, Selling, Giving or Manufacturing a Schedule I or II Controlled Substance in Virginia (Va. Code §18.2-248(C)) is punished with 5-40 years in prison and a fine as high as $500,000.  A second conviction is punished with 5 years to life in prison (with a mandatory minimum of 3 years) and a fine up to $500,000 (Va. Code §18.2-248(C)).  A third conviction is punished with a mandatory minimum, consecutive sentence of 10 years up to life in prison and a fine up to $500,000 (Va. Code §18.2-248(C)).
  • Distributing, Selling, Giving or Manufacturing a a Schedule III controlled substance in Virginia is a Class 5 felony, punished with up to 10 years in prison and a fine up to $2500 (Va. Code §18.2-248(E)(1)).
  • Distributing, Selling, Giving or Manufacturing a a Schedule IV controlled substance in Virginia is A Class 6 felony, punished with up to 5 years in prison and a fine up to $2500 (Va. Code §18.2-248(E)(2)).controlled substance in Virginia
  • Distributing, Selling, Giving or Manufacturing a a Schedule V or Schedule VI controlled substance in Virginia is a Class 1 misdemeanor.  It is punished with up to 12 months in jail and a fine up to $2500 (Va. Code §18.2-248(F)).

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

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

Importation of Controlled Substance in Virginia

Transporting one ounce or more of a Schedule I or II controlled substance into Virginia with the intent to sell or distribute is punished with 5-40 years in prison with a 3 year mandatory, consecutive minimum and a fine up to $1,000,000 (Va. Code §18.2-248.01).  A second or subsequent conviction is punished with a mandatory minimum, consecutive sentence of ten years.  For more information on charges of importing a controlled substance in Virginia, click here.  Click here for more information on importing a Schedule I controlled substance in Virginia.  Click here for more information on importing a Schedule II controlled substance in Virginia.

Controlled Substance Charges in Virginia Involving Minors

Distribution of a Schedule I, Schedule II, III or IV drug to a minor or causing a minor to distribute a Schedule I, II, III or IV controlled substance in Virginia is punished with 10-50 years in prison and a fine up to $100,000 under Va. Code §18.2-255.  There is a mandatory minimum sentence of 5 years if the drug was a Schedule I or II controlled substance.  Distributing a pill containing any combination of caffeine and ephedrine sulfate to a minor without a prescription is a Class 1 misdemeanor under Va. Code §18.2-248.5  Distributing or displaying for sale to a minor any written written material advertising the sale of a device for the unlawful ingesting or administering of a controlled substance is a Class 1 misdemeanor under Va. Code §18.2-255.1.

For more information on controlled substance distribution charges involving minors, click here.

Controlled Substance Offenses Occurring on Or Near School and Public Property

Manufacturing, distributing, or possessing a controlled substance on school or public property with intent to distribute is a distinct and 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 under Va. Code §18.2-255.2.  A second or subsequent conviction involving a Schedule I, II. or III controlled substance is pudistributing-controlled-substances-on-a-school-bus-has-mandatory-minimum-prison-timenished with a mandatory minimum, consecutive term of 1 year in prison.  The penalty for this charge is in addition to, and can be served consecutive with, any other drug charge.  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 in use, a public rec center, community center, public library, state facility, or public property within 1,000 feet of a state facility.

Specific Controlled Substance Charges in Virginia

Gamma-butyrolactone and 1,4-butanediol
Va. Code §18.2-251.3 makes it a Class 3 felony to knowingly manufacture, distribute, or possess with intent to distribute gamma-butyrolactone.  It is also a Class 3 felony to manufacture, distribute, or possess with intent to distribute 1,4 butanediol when it is intended for human consumption. 
Flunitrazepam

Va. Code §18.2-251.2 states that manufacturing, distributing or possessing with intent to distribute is punished with 5-40 years in prison and a fine up to $500,000  A second offense is punished with 5 years up to life in prison (with a mandatory, consecutive minimum of 3 years in prison) and a fine up to $500,000.  A third or subsequent offense is punished with a mandatory minimum, consecutive sentence of 10 years up to life in prison and a fine up to $500,000.

Stimulants and Steroids

Manufacturing or distributing an anabolic steroid or possessing an anabolic steroid with intent to manufacture or distribute  is punished with 1-10 years in prison or up to 12 months in jail and/or a fine up to $20,000 under Va. Code §18.2-248.5.  There is a mandatory minimum, consecutive sentence of 6 months.  Knowingly selling or distributing a pill, capsule or tablet containing any combination of caffeine and ephedrine sulfate to a minor without a prescription is a Class 1 misdemeanor.

Cocaine Charges

Although Cocaine is a Schedule II controlled substance in Virginia, a number of statutes in the Virginia code provide for increased penalties for offenses involving penalties for large amounts of Cocaine or Cocaine base.

Distributing, manufacturing or possessing with intent to distribute or manufacture more than 500 grams of cocaine or more than 250 grams of a mixture containing cocaine base is punished with 5 years up to life in prison and a fine up to $1,000,000 under Va. Code §18.2-248(C).  Distributing, manufacturing or possessing with intent to distribute or manufacture more than 5 kilograms of cocaine or 2.5 kilograms of a mixture containing cocaine base is punished with a mandatory, consecutive minimum of 20 years up to life in prison and a fine up to $1,000,000 under Va. Code §18.2-248(H)(2).

Importation of one ounce or more ounce of cocaine into Virginia with the intent to distribute is punished with 5-40 years in prison and a fine up to $1,000,000 under Va. Code §18.2-248.01.  A second or subsequent conviction is punished with a mandatory minimum of 10 years in prison.  For more information on importation of cocaine in Virginia, click here.

For more information on cocaine charges in Virginia, click here.

Heroin Charges

Heroin is a Schedule I controlled substance in Virginia and therefore is the most addictive and most dangerous.  Offenses involving heroin have harsher penalties than other Schedule I controlled substance penalties.  Distributing, manufacturing or possessing with intent to distribute or manufacture 100 grams or more of heroin or a mixture containing heroin is punished with a mandatory minimum, consecutive sentence of five years up to life in prison and a fine up to $1,000,000 under Va. Code §18.2-248(C)(1).  Distributing, manufacturing or possessing with intent to distribute 1 kilogram or more of heroin or a mixture containing heroin is punished with a mandatory minimum if 20 years up to life in prison and a fine up to $1,000,000 Va. Code §18.2-248(H)(1).

For more information on heroin charges in Virginia, click here.

Meth Charges

Methamphetamine is also a Schedule II controlled substance in Virginia but, like Cocaine, there are increased penalties for a number of offenses involving Meth.

  • engaging-in-a-continuing-criminal-enterprise-involving-drugs-could-result-in-life-in-prisonManufacturing meth or manufacturing less than 200 grams of a mixture or substance containing methamphetamine is punished with 10-40 years in prison and a fine up to $500,000 under Va. Code §18.2-248(C1).  Second and subsequent convictions can be punished with up to life in prison.
  • Manufacturing, selling, giving, distributing or possessing with intent to manufacture, sell give or distribute 28 grams or more of a mixture containing meth is punished with 5-40 years in prison and a fine up to $500,000 under Va. Code §18.2-248.03.  3 years are a mandatory minimum, consecutive sentence.
  • Manufacturing, selling, giving, distributing or possessing with intent to manufacture, sell give or distribute more than 227 grams of a substance containing meth is punished with a mandatory, consecutive minimum of 5 years up to life in prison and a fine up to $1,000,000 under Va. Code §18.2-248.03(B).
  • Manufacturing, selling, giving, distributing or possessing with intent to manufacture, sell give or distribute 10 grams or more of meth or 20 grams or more of a substance containing meth is punished with 5 years up to life in prison and a fine up to $1,000,000 under Va. Code §18.2-248(C)(4).
  • Manufacturing, selling, giving, distributing or possessing with intent to manufacture, sell give or distribute more than 100 grams of meth or 200 grams or more of a mixture or substance containing meth is punished with a mandatory minimum, consecutive sentence of 20 years up to life in prison and a fine up to $1,000,000 under Va. Code §18.2-248(H)(5).

Other Meth charges in Virginia include allowing a minor or incapacitated person to be present in a building during the manufacture or attempted manufacture of Meth (Va. Code §18.2-248.02) and possessing 2 or more different substances with the intent to manufacture Meth (Va. Code §18.2-248(J)).

Using Commercial Vehicle to Commit Felony Drug Offense

Va. Code §46.2-341.19 states that it is a Class 1 misdemeanor to use a commercial vehicle while committing a felony by distributing, manufacturing, or dispensing a controlled substance or possessing a controlled substance with intent to distribute, manufacture or dispense.  The sentence for this crime is in addition to any sentence the offender receives for the underlying drug charge.

Possession or Use of Firearm And Controlled Substance Offenses

It is a Class 6 felony under Va. Code §18.2-308.4(A) to knowingly and intentionally possess a firearm while possessing a Schedule I or II controlled substance.  This offense is a separate and distinct felony from any other drug offense.

An offender who possesses a firearm on or about his person while simultaneously possessing a Schedule I or II controlled substance is punished with a mandatory minimum sentence of 2 years in prison under Va. Code §18.2-308.4(B).

Possessing, using, or attempting to use a firearm or display such weapon in a threatening manner while committing or attempting to manufacture, sell, distribute or possessing with intent to manufacture, sell or distribute a Schedule I or II controlled substance or more than one pound of marijuana is a Class 6 felony under Va. Code §18.2-308.4(C).  This crime is a separate and distinct offense.  There is a mandatory minimum, consecutive prison sentence of 5 years additional to any punishment received for the underlying drug crime.

Continuing Criminal Enterprise Involving Cocaine, Meth or Heroin

Va. Code §18.2-248(H1) states that an offender faces 20 years up to life in prison and a fine up to $1,000,000 if he is an organizer of a continuing criminal enterprise that receives between $100,000 and $250,000 in gross receipts during a 12 month period from the manufacture, importation or distribution of cocaine, methamphetamine or heroin.  He can also be convicted under this statute if he is engaged in the enterprise to manufacture, distribute, or possess with intent to manufacture or distribute certain amounts of cocaine, cocaine base, meth, or heroin during a 12 month period.

An organizer of a continuing criminal enterprise that received more than $250,000 in gross receipts during a 12 month period from the manufacture, importation or distribution of meth, cocaine or heroin faces life in prison and a fine up to $1,000,000 (Va. Code §18.2-248(H2)).  He also faces life in prison if he is engaged in the enterprise to manufacture, distribute, or possess with intent to manufacture or distribute certain amounts of cocaine, cocaine base, meth or heroin during a 12 month period (Va. Code §18.2-248(H2)).

Controlled Substance Paraphernalia Charges

controlled-paraphernalia-charges-in-virginia-can-be-misdemeanors-or-feloniesControlled paraphernalia in Virginia are tools used for hypodermic injections or containers used for packaging small doses of controlled substances.  Drug paraphernalia is defined in Va. Code §18.2-265.1 as “all equipment, products, and materials of any kind which are either designed for use or which are intended by the person charged with violating § 18.2-265.3 for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, strength testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body marijuana or a controlled substance.”

Offenses involving controlled paraphernalia and drug paraphernalia in Virginia include:

  • Possession or distribution of controlled paraphernalia (Va. Code §54.1-3466)
  • Selling drug paraphernalia or possessing paraphernalia with the intent to sell (Va. Code §18.2-265.3)
  • Distributing drug paraphernalia to a minor (Va. Code §18.2-265.3(C)).
  • Selling drug paraphernalia to a minor (Va. Code §18.2-265.3(B)).
  • Advertising drug paraphernalia in (Va. Code §18.2-265.5)
  • Obtaining drug paraphernalia by fraud or false statements (§54.1-3470)
  • Distributing or displaying for sale material advertising the sale of controlled substance paraphernalia (Va. Code §18.2-255.1)

For more information on paraphernalia charges in Virginia, click here.

Controlled Substance Charges Related to Prescriptions

A pharmacist commits a Class 4 misdemeanor by filling a prescription that has not been received in writing before filling the prescription but receives the prescription within one week of filling it under Va. Code §18.2-248(E).

filling-a-prescription-without-written-documentation-is-a-class-4-misdemeanorRequesting a pharmacist to fill a prescription that has not been received in writing but is written at the time of the request and delivered to the pharmacist within one week of the request is also a Class 4 misdemeanor under Va. Code §18.2-248(E).

Knowingly assisting another person in unlawfully acquiring prescription drugs from  an unlicensed pharmacy or other source for compensation is a Class 1 misdemeanor under Va. Code §18.2-258.2.  A second or subsequent offense is a Class 6 felony, punished with up to 5 years in prison.

Distributing or Manufacturing Controlled Substances in Violation of the Drug Control Act

The Drug Control Act in Virginia is mainly regulatory (as opposed to criminal) and provides many requirements related to the distribution and dispensing of drugs, such as  dispensing, manufacturing, repackaging, prescriptions, handling, disposal, licensing, permits, inspections, and dissemination of information, among others.  The Drug Control Act does authorize certain people to distribute or manufacture controlled substances and controlled paraphernalia, such as practitioners and pharmacists.  Distributing or manufacturing in violation of these provisions can be charged as an illegal distribution or manufacturing offense under Va. Code §18.2-248.  A violation of the drug control act is a Class 1 misdemeanor under Va. Code §18.2-260 unless another penalty is provided.

For more information on violations of the regulatory provisions of the Drug Control Act, click here.

Obtaining Controlled Substance by Fraud

Va. Code §18.2-258.1 prohibits a number of acts involving using fraud to obtain a controlled substance in Virginia.  The offenses are all Class 6 felonies and include:

  • Obtaining or attempting to obtain a controlled substance in Virginia by:
    • fraud, deceit, misrepresentation, embezzlement, or subterfuge
    • forgery or alteration of a prescription or a written order,
    • concealment of a material fact, or
    • using a false name or giving a false address
  • furnishing false or fraudulent information in, omitting information from, or willfully make a false statement in a prescription, order, report or other document
  • using a fake, revoked, suspended, license number or another persons’s license number in the course of the manufacture or distribution of a controlled substance in Virginia
  • representing oneself to be or falsely assuming the title of a manufacturer, wholesaler, pharmacist, physician, dentist vet or other authorized person for the purpose of obtaining a controlled substance in Virginia
  • making or uttering a false or forged prescription or false or forged written order, and
  • affixing a false or forged label to a package or receptacle containing any controlled substance.

Delivery of a Controlled Substance to a Prisoner

Delivering, attempting to deliver, or conspiring to deliver a controlled substance to a prisoner in Virginia under Va. Code §18.2-474.1 is a Class 5 felony, punished with up to 10 years in prison and a fine up to $2500.  For more information on delivery of a controlled substance to a prisoner in Virginia, click here.

Common Nuisance

It is against the law to knowingly operate or own a common nuisance under Va. Code §18.2-258.  An establishment is a “common nuisance” if it is frequented by people under the influence of illegally obtained substances, if it is frequented by persons for the purpose of illegally obtaining possession of, manufacturing, or distributing controlled substances, or if it is used for the illegal possession, manufacture or distribution of controlled substances.  Knowingly allowing an establishment to operate as a common nuisance is a Class 1 misdemeanor.  A second or subsequent offense is a Class 6 felony.

Maintaining Drug Housemaintaining-a-drug-house-in-virginia-is-punished-with-up-to-10-years-in-prison

Maintaining or operating a fortified drug house is a Class 5 felony in Virginia under Va. Code §18.2-258.01.  A fortified drug house is a structure or building that is substantially altered from its original status by reinforcement with the intent to impede or delay entry by law-enforcement, the structure is being used to manufacture or distribute controlled substances, and the structure is the object of a search warrant.

Conspiracy and Attempts

Va. Code §18.2-256 states that any person who conspires to commit any drug offense will be punished with either a fine, jail or both.  The minimum punishment for the conspiracy cannot be lower than the minimum punishment for the offense conspired, and the maximum punishment for the conspiracy cannot exceed the maximum punishment for the offense conspired.

Attempting to commit a felony drug offense is punished with 1-10 years in prison under Va. Code §18.2-257(A).  However, if the offender attempted to commit a felony drug offense with a lower penalty than 1-10 years, he may be punished according to the lower penalty.  Attempting to commit a misdemeanor drug offense is a Class 2 misdemeanor unless the penalty for the completed offense is lower than the penalty for the Class 2 misdemeanor. In that case, the offender can be punished with the lesser penalty (Va. Code §18.2-257(B)).

First Offender Program

Virginia allows for the dismissal of a first time drug charge upon successful completion of a diversion program provided for in Va. Code §18.2-251.  The program requires community service, drug and alcohol screening, ASAP classes,  payment of fees and costs for the program and testing, and the offender must either search for or maintain employment.  Upon successful completion of the program, the charge will be dismissed.  However, the arrest can never be expunged.  If he offender fails to complete the program, not only will he or she be convicted of the drug offense, but he or she will be barred from entering the program again.  For more information on the first offender program in Virginia, click here.