Possession of a Controlled Substance in Virginia

All states regulate the possession of controlled substances, though they can differ in their definition of controlled substances and penalties for possession. Virginia classifies not only well-known drugs like marijuana, heroin, and cocaine as controlled substances but also the compounds used to manufacture them.

This article discusses the possession of controlled substances for personal use only. Possession of drugs for sale or distribution carries different penalties.

How Virginia Classifies Controlled Substances

Virginia classifies controlled substances into six schedules (I to VI), according to their potential for abuse and accepted medical use. Schedule I lists the most dangerous drugs, which have a high probability of abuse and addiction and no recognized medical value. Schedules II to VI decrease in dangerousness and probability of abuse and increase in recognized medical uses.

Examples of drugs within each schedule are provided below:

• Schedule I includes heroin, MDMA (ecstasy), LSD, and psilocybin (magic mushrooms).
• Schedule II includes opium, morphine, codeine, oxycodone, amphetamines, fentanyl, hydrocodone, methadone, and cocaine.
• Schedule III includes anabolic steroids, central nervous system depressants and stimulants, and ketamine.
• Schedule IV includes diazepam (Valium), clotiazepam, zolpidem (Ambien), alprazolam (Xanax), and tramadol.
• Schedule V includes medicines that contain very small amounts of specified narcotic drugs.
• Schedule VI includes drugs exempted or not included in the previous schedules or ones requiring an "Rx only" symbol on the bottle. This category includes many of the substances "huffers" commonly use.

What Are the Penalties for Illegal Drug Possession in Virginia?

Virginia's Drug Control Act makes it illegal to possess, purchase, or have under one's control a controlled substance without a prescription. Penalties for illegal possession vary according to the class and amount of the drug and whether the offense involved any other aggravating factors.

Illegal Possession of Schedule I and II Drugs

Any person who possesses a controlled substance in Schedule I or II is guilty of a Class 5 felony. It's also a Class 5 felony to illegally possess flunitrazepam (Rohypnol). These offenses carry 1 to 10 years in prison or up to 12 months in jail and a $2,500 fine.

Illegal Possession of Schedule III Drugs

A defendant charged with possession of any Schedule III controlled substance faces a Class 1 misdemeanor conviction with penalties of up to 12 months in jail and a $2,500 fine.

Illegal Possession of Schedule IV Drugs

Any person who illegally possesses a controlled substance in Schedule IV is guilty of a Class 2 misdemeanor, which subjects a guilty defendant to up to six months in jail and a $1,000 fine.

Illegal Possession of Schedule V Drugs

A defendant charged with possession of any Schedule V drug faces a Class 3 misdemeanor conviction and a $500 fine.

Illegal Possession of Schedule VI Drugs

An offender guilty of possessing a Schedule VI controlled substance receives a Class 4 misdemeanor conviction and up to a $250 fine.

Illegal Possession of Drug Paraphernalia

Virginia also makes it illegal to possess and use certain drug paraphernalia­—items used to ingest, inhale, inject, store, conceal, or weigh illegal controlled substances. Possession of drug paraphernalia constitutes a Class 1 misdemeanor, which carries penalties of up to 12 months in jail and a $2,500 fine.

What Are the Penalties for Possession of a Small Amount of Marijuana in Virginia?

People who are 21 or older may lawfully possess up to one ounce of marijuana. Possession in a public place of quantities between one and four ounces has been decriminalized and results in a civil penalty only. Possession of more than four ounces in a public place, other than by a licensed marijuana establishment, can result in a criminal conviction, depending on the exact amount.

Will You Serve Jail Time for Illegal Drug Possession in Virginia?

Yes, it's possible. However, Virginia law offers a few sentencing alternatives that could benefit first-time offenders and those charged with lower-level or nonviolent offenses.

First-Time Offenders: Drug Diversion

First-time offenders in Virginia may be eligible for a drug diversion program. As part of the program, a judge places the offender on probation and can require the defendant to partake in drug treatment counseling, submit to random drug tests, do community service, and pay all costs associated with the program. If a defendant successfully completes the program, the court will dismiss the underlying charges. However, failure can result in a criminal conviction and even jail time.

Drug Courts in VA

Defendants with severe substance abuse issues may be eligible to participate in a Virginia drug court. Such an option is only available to nonviolent offenders who have drug-related charges. This specialty court is a multi-agency effort that offers judicial monitoring of intensive treatment and strict supervision of addicts in drug cases, particularly those involving use and possession.

Possible Defenses to Drug Possession Charges in Virginia

Defendants facing controlled substance charges have several defense strategies available to them.

Actual innocence. Defendants charged with a drug-related crime have the usual defenses available to all criminal defendants, such as "Someone else committed this crime," or "the alleged conduct did not occur."

Lack of knowledge. Defendants can try to show the jury that they did not know the controlled substance was in their possession. For example, if a hitchhiker gets a ride from a passing car and the police locate a bag of heroin under the hitchhiker's seat, the defense will argue the defendant had no knowledge of the bag hidden under their seat.

Unlawful search and seizure. A common defense in drug possession cases includes asking the court to exclude evidence of the drugs at trial based on an unlawful search or seizure by police. Without evidence of the drugs, a prosecutor's case might fall apart, resulting in a reduction of charges or a dismissal altogether. Defense teams do this by scrutinizing and calling out faulty or suspect police methods used in gathering or handling the evidence.

Amnesty law. Virginia's Medical Amnesty Law provides that any person who is experiencing a drug overdose or someone rendering aid to that person should not be arrested, charged, or prosecuted for a drug possession violation if the evidence for such a charge resulted solely from seeking medical assistance. The person must report the overdose to a firefighter, EMS personnel, law enforcement officer, or emergency 911 system.

Talk to a Lawyer

If you have been charged with a drug-related offense in Virginia, contact a local criminal defense attorney as soon as possible. A controlled substance conviction can become part of your permanent criminal record and negatively impact your ability to find employment or housing, as well as subject you to fines and time behind bars. An experienced lawyer will discuss the circumstances unique to your situation, formulate possible defenses, and protect your constitutional rights.

(Va. Code §§ 4.1-1100, 18.2-10, 18.2-11, 18.2-250, 18.2-251, 18.2-251.1, 18.2-251.03, 18.2-254.1, 18.2-265.1, 54.1-3446, 54.1-3448, 54.1-3450, 54.1-3452, 54.1-3454, 54.1-3455 (2023).)