The Law Firm of

Erin L.T. Ranney, PLLC

Attorney At Law

 
Phone:   (804) 318-1151  or (804) 212-5252
             
 

Taking criminal and traffic defense cases in Chesterfield, Colonial Heights, Richmond, Henrico, New Kent, Hanover, Caroline, Hopewell, Prince George, Dinwiddie, Petersburg, Emporia, Greensville, Sussex, and across Virginia

 

Providing counsel on family law matters, including divorce, custody, visitation, support, and adoption

 

Providing estate planning services to those in Virginia, including wills, trusts, power of attorney, and advanced medical directives

Criminal Law Spotlight - January 2017

Drug Possession


Drug Possession

  Drug possession is a very serious offense in Virginia.  There are many legal concepts that are factors in a drug possession case.  This includes issues of search and seizure, forensic science, and the concept of "constructive possession".  The primary statutes are:


 

18.2-250. Possession of controlled substances unlawful.

A. It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act ( 54.1-3400 et seq.).

Upon the prosecution of a person for a violation of this section, ownership or occupancy of premises or vehicle upon or in which a controlled substance was found shall not create a presumption that such person either knowingly or intentionally possessed such controlled substance.

(a) Any person who violates this section with respect to any controlled substance classified in Schedule I or II of the Drug Control Act shall be guilty of a Class 5 felony.

(b) Any person other than an inmate of a penal institution as defined in  53.1-1 or in the custody of an employee thereof, who violates this section with respect to a controlled substance classified in Schedule III shall be guilty of a Class 1 misdemeanor.

(b1) Violation of this section with respect to a controlled substance classified in Schedule IV shall be punishable as a Class 2 misdemeanor.

(b2) Violation of this section with respect to a controlled substance classified in Schedule V shall be punishable as a Class 3 misdemeanor.

(c) Violation of this section with respect to a controlled substance classified in Schedule VI shall be punishable as a Class 4 misdemeanor.

B. The provisions of this section shall not apply to members of state, federal, county, city or town law-enforcement agencies, jail officers, or correctional officers, as defined in  53.1-1, certified as handlers of dogs trained in the detection of controlled substances when possession of a controlled substance or substances is necessary in the performance of their duties.

(Code 1950,  54-524.101:2; 1972, c. 798; 1973, c. 64; 1975, cc. 14, 15; 1976, c. 614; 1978, cc. 151, 177, 179; 1979, c. 435; 1980, c. 285; 1991, c. 649; 1998, c. 116.)


18.2-250.1. Possession of marijuana unlawful.

A. It is unlawful for any person knowingly or intentionally to possess marijuana unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act ( 54.1-3400 et seq.).

Upon the prosecution of a person for violation of this section, ownership or occupancy of the premises or vehicle upon or in which marijuana was found shall not create a presumption that such person either knowingly or intentionally possessed such marijuana.

Any person who violates this section shall be guilty of a misdemeanor, and be confined in jail not more than thirty days and a fine of not more than $500, either or both; any person, upon a second or subsequent conviction of a violation of this section, shall be guilty of a Class 1 misdemeanor.

B. The provisions of this section shall not apply to members of state, federal, county, city or town law-enforcement agencies, jail officers, or correctional officers, as defined in  53.1-1, certified as handlers of dogs trained in the detection of controlled substances when possession of marijuana is necessary for the performance of their duties.

(1979, c. 435; 1991, c. 649; 1998, c. 116.)



Break down:

- Possession can include constructive or actual possession.  The elements to be considered in determining whether someone possessed a controlled substance include knowledge, ownership, and occupancy.  Allen v. Commonwealth, Ct. of Appeals Nov. 10, 1992., Hairston v. Commonwealth, 5 Va. App. 183 (1987). 

- Mere proximity to the drugs without more is insufficient to establish possession.  Drew v. Commonwealth, 230 Va. 471 (1986).

- The evidence has to show that the person was aware of the presence of and character of the substance and was intentionally and consciously in possession of it.  Clodfelter v. Commonwealth, 218 Va. 619 (1977).

- However possession does not have to be exclusive.  In other words, more than one person may be in possession of controlled substances depending on the circumstances.  Clodfelter v. Commonwealth, 218 Va. 619 (1977).

- Controlled substance residue is typically sufficient to convict someone of possession so long as the evidence shows that the person knew the character of the residue and was intentionally and conciously in possession.  Henry v. Commonwealth, Ct. of Appeals (May 14, 1996).

- A newer case held that a still-warm smoking device found in a car was sufficient for a conviction on possession where the defendant had claimed to have control over that vehicle for 30 minutes.  Etheridge v. Commonwealth, 2009 Va. LEXIS 134 (Mar. 24 2009).

- Larger quantities of controlled substances may induce charges of drug distribution.  Drug distribution is governed by a different set of statutes with much more stringent punishments.

- It is almost never better to tell a police officer that you aren't "using" but instead "selling, giving, or holding" the drugs for a friend.  The officer will then look for evidence to confirm those things and the charges will be significantly more severe.

- There are first-time-offenders programs in Virginia but they have certain restrictions for participation.  There is no first time offense distribution program state-wide at this time.


- Virginia is a "use and lose" state.  If you are convicted of a drug or alcohol crime you generally can lose your privilege to drive.  It is important to know whether your offense can cause that to happen, for how long you lose your license, and whether you have an option for a restricted license.

 


Remember, drug possession is a broad crime under Virginia law with a variety of dispostions.   If you are charged with drug possession or any other criminal offense call me today for a free consultation.

Drug Possession Facts


Type: Misdemeanor or a felony depending on the type of narcotic, the amount, and the number of past offenses.

 

Maximum punishment:

Misdemeanor - maximum of 12 months in jail, $2500 fine, 6 months license suspension.

Felony - Up to 5 years in prison, $2500 fine, 1 year license revocation.  Distribution of drugs carries much higher penalties.

 

Interesting Facts:  A person can be found guilty of possession of a narcotic based on possession of an item with merely a trace amount or "residue" of the narcotic.