Possession with Intent to Distribute A Controlled Substance

Va Code §18.2-248 criminalizes the possession with intent to distribute a controlled substance in Virginia.  The same statute also criminalizes many other acts involving controlled substances, including distribution, manufacturing, and other possession with intent to distribute controlled substance crimes.  Click here for more information on distribution of controlled substances in Virginia.  For more information on manufacturing controlled substance charges in Virginia, click here.

Proof of Possession with Intent to Distribute a Controlled Substance in Virginia (Va. Code §18.2-248)

To convict an offender of possession with intent to distribute a controlled substance in Virginia under §18.2-248, the Commonwealth must prove possession, that the alleged drug was a controlled substance, and intent to distribute.possession with intent to distribute a controlled substance

Possession 

To convict an offender of possession with intent to distribute a controlled substance in Virginia, the Commonwealth must prove that the offender knowingly and intentionally possessed the controlled substance.  This means that he knew the illegal character of the substance, knew where it was located, and exercised dominion and control over it.  Possession can be actual or constructive, and more than one person can be convicted of possessing the same controlled substance at the same time.  For more information on how the Commonwealth can prove possession of a controlled substance in Virginia, click here.

Controlled Substance

The Commonwealth must prove that the substance found is an illegal controlled substance.  Controlled substances are drugs that are classified into 6 Schedules based on their potential for abuse and medical utility.  Proof that the substance found is one of the listed controlled substances is usually introduced in the form of lab test results.  For more information on the different schedules of controlled substances and which drugs are included in the different schedules, click here.

Intent to Distribute 

Intent to distribute can be proven with the offender’s admissions, but is usually proven with circumstantial evidence.  Factors the courts consider in determining an intent to distribute include:

  • possession with intent to distribute a controlled substance in VirginiaQuantity of the controlled substance
  • Packaging
  • Lack of evidence that the offender personally used the drugs
  • Prior intent to distribute offenses, or
  • Presence of the following:
    • Drug Selling Paraphernalia (baggies, pager, scales)
    • Firearm, or
    • Large amount of cash

For more information on how the Commonwealth can prove intent to distribute a controlled substance in Virginia, click here.

Distribute is defined in Va. Code §54.1-3401 as “to deliver other than by means of administering or dispensing a controlled substance.”  Distribution is interpreted broadly and therefore covers basically any transfer of controlled substances, even if there was no money involved.

Penalties for Possession with Intent to Distribute a Controlled Substance in Virginia

Possession with Intent to Distribute a Controlled Substance in Virginia is punished with jail time, fines, and driver’s license suspension.

  • Possession of a Schedule 1 or Schedule II Controlled Substance with Intent to Distribute (Va. Code §18.2-248(C)): A First Offense Possession with Intent to Distribute a Schedule I or II Controlled Substance is punished with 5-40 years in prison, a fine up to $500,000.  A Second Offense is punished with up to life in prison (with a 3 year mandatory minimum) and a fine up to $500,000.  A Third (or Subsequent) Offense is punished with up to life in prison (with a mandatory minimum of 10 years) and a fine up to $500,000.
  • Possession of a Schedule III Controlled Substance with Intent to Distribute in Virginia is a Class 5 felony under Va. Code §18.2-248(E)(1).  It is punished with up to 10 years in prison and a fine up to $2500.
  • Possession of a Schedule IV Controlled Substance with Intent to Distribute in Virginia is a Class 6 felony under Va. Code §18.2-248(E)(2).  It is punished with up to 5 years in prison and a fine up to $2500.
  • Possession of a Schedule V Controlled Substance with Intent to Distribute in Virginia is a Class 1 misdemeanor under Va. Code §18.2-248(F).  It is punished with up to 12 months in jail and a fine up to $2500.
  • Possession of a Schedule VI Controlled Substance with Intent to Distribute in Virginia under Va. Code §18.2-248(F) is punished with up to 12 months in jail and a fine up to $2500.
Other Charges Related to Possession with Intent to Distribute A Controlled Substance in Virginia

Possession with Intent to Distribute Controlled Substance School BusPossession with Intent to Distribute A Controlled Substance on School and Public Property: Possession with Intent to Distribute a Controlled Substance at certain locations (public schools, school bus stop, public libraries, etc.) is a separate and distinct felony under Va. Code §18.2-255.2.  Possession with intent to distribute a controlled substance at one of the listed locations is punished with 1-5 years in prison and a fine up to $100,000 for a first offense.  Second and subsequent offenses involving controlled substances in Schedules I-III have mandatory minimum prison terms.  For more information on the locations that are subject to the penalties under Va. Code §18.2-255.2, click here.

Possession of an Anabolic Steroid with Intent to Distribute: This offense, charged under Va. Code §18.2-248.5(A) is punished with a mandatory, consecutive minimum of 6 months in jail with a maximum of 10 years in prison and a fine up to $20,000.

Possession of Gamma-Butyrolactone or 1, 4-Butanediol: Va. Code §18.2-251.3 states that possessing with the intent to distribute Gamma-Butyrolactone of 1, 4-Butanediol for human consumption is punished with 5-20 years in prison and a fine up to $100,000.

Possession with Intent to Distribute Substance Containing Meth: Possessing with intent to distribute more than 28 grams of a mixture or substance containing meth is punished with 5-40 years in prison and a fine up to $500,000.  There is a mandatory minimum, consecutive sentence of 3 years (Va. Code §18.2-248.03(A)).  Possessing more than 227 grams of a mixture or substance containing meth with intent to distribute is punished with 5 years up to life in prison and a fine up to $1,000,000.  5 years of the sentence is a mandatory, consecutive minimum (Va. Code §18.2-248.03(B)).

Enhanced Penalties for Possession of Cocaine, Cocaine Base, Meth or Heroin with Intent to Distribute: Va. Code §18.2-248(C) and §18.2-248(H) provide additional and enhanced penalties for possessing large amounts of specific Schedule I and II controlled substances with intent to distribute.  These enhanced penalties include mandatory minimum prison sentences which will be served consecutively with any other prison sentence.  For more information on possession with intent to distribute charges involving large amounts of these controlled substances, click here.

Possession with Intent to Distribute A Controlled Substance Involving Continuing Criminal Enterprise: 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 and he engaged in the enterprise to possess certain amounts of cocaine, cocaine base, meth, or heroin with intent to distribute during a 12 month period (Va. Code §18.2-248(H2)).  He will receive a mandatory life sentence for possessing large amounts of cocaine, substances containing cocaine base, meth or heroin with intent to distribute during a 12 month period (Va. Code §18.2-248(H2)).  For more information on this charge, including the amounts of these controlled substances that trigger the enhanced penalties, click here.

Using Commercial Motor Vehicle During Commission of Felony Drug Offense: Using a commercial vehicle while OLYMPUS DIGITAL CAMERAcommitting a felony possession with intent to distribute a controlled substance offense is a Class 1 misdemeanor under Va. Code §46.2-341.19.  This crime is a separate and distinct offense, and the penalty is in addition to any penalty received for the primary drug offense.

Possession or Use of Firearm While Possessing A Controlled Substance With Intent to Distribute: Possessing, using, or attempting to use a pistol, shotgun, rifle, or other firearm or displaying such weapon in a threatening manner while possessing a Schedule I or II controlled substance with intent to distribute 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

Va. Code §18.2-251 allows for the deferred disposition and dismissal of a first offense possession with intent to distribute a controlled substance charge if the offender completes a rigorous probation program.  It requires substance abuse evaluation and treatment, community service, drug testing, and maintaining employment.  If the offender successfully completes the program, the charge will be dismissed.  However, the arrest can never be expunged.  If the offender fails to complete the program, the judge will convict him of possession with intent to distribute a controlled substance, impose a sentence, and he will never be able to benefit from the program again.