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DRUG OFFENSES IN VIRGINIA
Possession vs. Possession with Intent to Distribute
With drug offenses there is simple possession and there is possession with intent to distribute (PWID). Possession means illegal drugs were found either on your person or under your dominion and control. Generally this means the drugs were intended for personal use. PWID means you planned to sell or give the drugs to another person. This is the more serious of the charges.
Often people assume that the amount of the drugs is the determining factor in whether the drugs are for personal use or for sale. This is not the case, and actually with marijuana the amount is almost a non-factor. Weight is one factor along with packaging, presence of a smoking device, money present among others. Police will often charge someone with PWID as a default setting if they are unsure because it is the more serious charge. Identifying the elements can determine whether a case proceeds as possession or PWID.
In Virginia, Code Section 18.2-250.1 makes simple possession of marijuana a non-criminal offense with a fine of $25 since 2020. Subsequent offenses carry up to 12 months in jail. PWID marijuana charges depend on the amount of the marijuana- less than half an ounce is a Class 1 misdemeanor up to 12 months in jail, half an ounce to 5 pounds is a Class 5 Felony punishable by up to 10 years in prison, and more than 5 pounds is a felony punishable by 5 to 30 years in prison.
Cocaine and Other Controlled Substances Offenses
Most other illegal non-prescription drugs such as cocaine and heroin are “controlled substances”. Under 18.2-250 of the Virginia Code possession of these drugs are class 5 felonies punishable by up to 10 years in prison. PWID charges for these drugs carry up to 40 years in prison for first offenses. Second offenses carry the possibility of life in prison with a mandatory minimum of three years in prison (meaning the judge cannot suspend that time even if he feels it would be best). A third offense also carries the possibility of life in prison with a mandatory minimum of 10 years in prison.
What’s this “first offender” I’ve heard about?
Virginia allows for people charged with simple possession charges to enter a first offender program. If they avoid criminal trouble for a set period of time, enter into substance abuse treatment and complete community service the charges can be dismissed. This is another reason it is vitally important to try to reduce charges to possession charges.
Note, that although an individual may be eligible for first offender, it is NOT automatically granted by the court. Often an experienced drug laws defense attorney can be a valuable asset in the effort to secure first offender status.