Virginia is tough on offenses involving drugs including marijuana, controlled substances, recreational drugs, and prescription medications. The penalties can be severe and may have permanent consequences to the accused and his or her family.

No matter how bad the case seems at first, there are many ways to fight the charge and minimize the damage or eliminate it altogether. This article explains some of the critical information that anyone with a marijuana charge or controlled substance charge should know.

How drugs are classified

Both federal and Virginia drug laws categorize controlled substances according to six schedules. Classification depends on how addictive the drug is, how likely it is to be abused, whether it has any medicinal value, and other considerations. The more dangerous drugs are classified in the lower schedules.

Not all drugs fall into the same schedule under federal and Virginia law. The Virginia schedules are explained here:

  • Marijuana / Cannabis. Although cannabis is illegal in Virginia, it is not a controlled substance under Virginia law except in its most concentrated form—hash oil.
  • Schedule I. Schedule I drugs are considered the most dangerous drugs and have little potential for medical use. In Virginia, this includes heroin, LSD, ecstasy, hash oil among others.
  • Schedule II. These drugs are considered dangerous with high potential for abuse like those in schedule I, but they have more recognized medical uses as well. Morphine, fentanyl other pharmaceutical opiates, opioids, methamphetamine, other stimulants, and depressants fall into the list.
  • Schedule III. This category includes codeine, hydrocodone, and anabolic steroids. Schedule III drugs generally have moderate to low potential for physical and psychological dependency.
  • Schedule IV. These drugs include depressants and tranquilizers. Valium is a typical example.
  • Schedule V. Codeine-based cough drops are commonly known Schedule V drugs.
  • Schedule VI. This category includes prescription medications.

Possession and Distribution of Marijuana and Controlled Substances

Virginia’s drug laws are set forth in Chapter 7 of Title 18 of the Virginia Code. The two main categories of marijuana and controlled substance offenses are simple possession and distribution offenses.

Simple possession

Conviction for possession of marijuana or controlled substances requires the prosecutor to prove that the accused knowingly and intentionally possessed the drugs. Whether the charge is for marijuana or a controlled substance, the elements work the same.

  • “Knowingly” means that the person knew that he possessed the substance and that it was marijuana or a controlled substance depending on the charge.
  • “Intentionally” means the possession was not accidental.

Important points to understand:

  • Possession does not require ownership.
  • More than one person can simultaneously possess the same marijuana or controlled substances. This is called joint or shared possession.
  • Possession of any amount could result in a conviction. Many people have been convicted of possession charges for residue scraped from a smoking device or other paraphernalia.
  • The police often charge the vehicle owner or driver with possession when they find drugs in the car. Circumstantial evidence can prove possession in some cases. However, even if the driver was the only person in the vehicle, the police would need additional evidence to prove possession at trial.

Penalties for Possession of Marijuana and Controlled Substances:

  • Possession of Marijuana
    • First offense
      • Up to 30 days in jail
      • Up to $500 fine
      • Six-month suspension of driver’s license (not mandatory unless the offense occurred while operating a motor vehicle)
    • Second or subsequent offense–Class 1 Misdemeanor
      • Up to 12 months in jail
      • Up to $2500 fine
      • Six-month suspension of driver’s license
  • Possession of Controlled substances
    • Schedule I or II—class 5 felony. The maximum penalty is 10 years in prison, a $2500 fine, supervised probation, and a six-month suspension of driver’s license.
    • Schedule III—class 1 misdemeanor. The maximum penalty is 12 months in jail, a $2500 fine, and six-month suspension of driver’s license.
    • Schedule IV—class 2 misdemeanor. The maximum penalty is six months in jail, a $1000 fine, and a six-month suspension of driver’s license.
    • Schedule V—class 3 misdemeanor which carries a maximum fine of $500.
    • Schedule VI—class 4 misdemeanor which carries a maximum fine of $250.
  • Possession of drug paraphernalia—class 1 misdemeanor, which carries up to 12 months in jail and a fine of up to $2500.

First Offender. If someone has no prior drug convictions, he may be able to avoid a conviction through a “first offender” disposition under 18.2-251. In these cases, the court puts the person on probation, orders community service, and VASAP instead of convicting him. If the accused completes the requirements without incident, the court dismisses the charge after a year.

Distribution / Possession with intent to distribute drugs

It is illegal to distribute (sell, give away, share with friends etc.) or possess marijuana or controlled substances with intent to distribute them. Distribution and possession with intent to distribute (often called PWID) are the same. The only difference between distribution and PWID is whether the act of distribution has already occurred.

For either offense, the prosecutor must prove at trial that:

  • The person knowingly and intentionally possessed the marijuana or controlled substances AND
  • Either distributed or intended to distribute. This can be by selling, giving away, sharing etc.


  • Distribution of Marijuana
    • Less than one-half ounce—class 1 misdemeanor
      • Up to 12 months in jail
      • Up to $2500 fine
      • Six-month suspension of driver’s license
    • More than one-half ounce—class 5 felony
  • Schedule I or II—unclassified felony or class U felony
    • First offense
      • Five to 40 years incarceration
      • Up to $250,000 fine
      • Supervised probation
      • Six-month suspension of driver’s license.
    • Second offense—incarceration from five years to life with a three-year mandatory minimum for each count.
    • Third offense—possible life sentence with ten-year mandatory minimum for each count.
    • Quantity does not matter, but it is something that factors into sentencing guidelines once convicted.
    • Possession with intent to distribute drugs or distribution of drugs
  • Distribution as an Accommodation
    • This is a partial defense that lowers the severity of the charge. See below.

Other Virginia Drug Offenses

  • Distribution in a school zone
  • Distribution to a minor
  • Manufacturing controlled substances
  • Manufacturing / Growing marijuana
  • Drug trafficking
  • Conspiracy to sell or distribute controlled substances
  • Obtaining prescription medication by fraud or deceit
  • Possession or distribution of controlled substances while in possession of a firearm

Defense strategies for marijuana and drug offenses

Some possible defenses, depending on the facts of the case, are:

  • The evidence doesn’t prove the accused knew the drugs were present
  • Insufficient evidence to prove the accused knew the substance was marijuana or a controlled substance
  • Possession was not intentional
  • Possession of controlled substances was pursuant to a prescription
  • Insufficient evidence to prove intent to distribute
  • Distribution was an accommodation, and the accused did not profit (reduces the charge and the penalties)
  • Motion to suppress illegally obtained evidence
    • Illegal searches and seizures. Law enforcement can’t conduct a search of your home, car, or person without a search warrant unless an exception to the warrant requirement applies. Even with an exception to the warrant requirement, the police need probable cause to conduct a search. I fight to exclude any evidence that the police obtained illegally.
    • Involuntary statements/right to counsel. The police must tell anyone in custody of their right to remain silent and right to an attorney. Failure to do so means statements obtained while in custody are inadmissible, as well as any evidence the police obtained because of those statements.
  • Some or all evidence is inadmissible under the following rules of evidence:
    • Failure to follow chain of custody rules. The police must properly keep, identify, and account for the drugs they take from you or any co-defendants from the time of the taking through the trial. If they can’t prove that they did so, I move to exclude it.
    • Failure to properly notify defense counsel of the intent to use the results of laboratory analysis of the marijuana or controlled substances at trial.
    • Hearsay and testimonial statements
  • Speedy trial. Virginia has strict deadlines for trial in felony cases, especially if a defendant is in custody. If the court does not hold the trial before the deadline, I move to have the case dismissed.

Other defenses often apply depending on the specific case.

I have the experience and skills to help defendants charged with the most serious drug crimes and lesser offenses as well. The government has the burden to prove its case and often they can’t meet that burden. Many times, I can negotiate a plea settlement that can reduce the criminal charges. Even when convictions occur, there are alternatives that can help you if substance abuse is the main culprit. For help now, please phone my office at (804) 212-2319 or contact me by completing my contact form.