Possession of a Controlled Substance in West Virginia

Learn how West Virginia punishes drug possession offenses, including alternatives to jail for first-time offenders.

By , Attorney · Mitchell Hamline School of Law
Updated 9/20/2023

Illegal drug possession can mean jail time in West Virginia. Read on to learn how West Virginia classifies and penalizes drug possession offenses.

How West Virginia Classifies Controlled Substances

West Virginia divides controlled substances into five schedules—Schedules I to V. Schedule I drugs are considered the most dangerous and highly addictive, while Schedule V drugs are the least dangerous and the least addictive. Below are examples of drugs placed into each schedule.

Schedule I includes drugs such as heroin, MDMA, LSD, mescaline, marijuana, and psilocybin.

Schedule II includes drugs such as raw opium, codeine, oxycodone, morphine, cocaine, fentanyl, carfentanil, and meth.

Schedule III includes drugs such as ketamine, anabolic steroids, GHB, and buprenorphine.

Schedule IV includes drugs such as barbital, diazepam (Valium), flunitrazepam (Rohypnol), and lorazepam (Ativan).

Schedule V includes therapeutic medicines containing low amounts of codeine or other narcotics combined with non-narcotic active ingredients.

(W.Va. Code §§ 60A-2-204, -206, -208, -210, -212 (2023).)

What Are the Penalties for Illegal Drug Possession in West Virginia?

Most penalties for illegal drug possession are the same regardless of the type and amount of drug.

Misdemeanor Penalties for Illegal Drug Possession

A conviction for illegal possession of drugs carries a misdemeanor penalty of 90 to 180 days in jail and up to a $1,000 fine. Most possession offenses will receive a conditional discharge for a first offense. A judge must sentence first-time offenders to conditional discharge for possession charges relating to synthetic cannabinoids, MPVD (mephedrone), and less than 15 grams of marijuana.

Conditional Discharge for First Possession Offenses

Conditional discharge means the court will accept a guilty plea or verdict but holds off on entering a conviction. Instead, the judge places the defendant on probation with conditions. Conditions usually include remaining law-abiding and abstaining from drugs or alcohol. If the defendant illegally possessed a Schedule I, II, III, or IV drug (other than marijuana), the judge may order the defendant to participate in a drug court or treatment program as a condition of probation.

If a defendant successfully completes probation, the court discharges the person and dismisses the case—meaning there's no conviction. After six months, the defendant can ask the judge to expunge their record. A person only gets one shot at discharge and dismissal.

(W.Va. Code §§ 60A-4-401(c), 60A-4-407, 60A-4-407a (2023).)

Alternatives to Jail Time for Drug Possession Charges in West Virginia

In addition to conditional discharge, West Virginia offers several other alternatives to jail for possession offenses. Defendants must agree to, and abide by, the terms set by the prosecution or court to stay out of jail. Several of these options are one-time deals.

Pretrial Diversion

Some prosecution offices may offer pretrial diversion programs that avoid going to court. Pretrial diversion requires a defendant to enter into a written agreement with the prosecutor. The agreement can last up to two years and may require the defendant to comply with conditions or supervision. The prosecutor may dismiss the charges if the person complies with all the pretrial diversion terms.

(W.Va. Code § 61-11-22 (2023).)

Deferred Adjudication

While deferred adjudication doesn't avoid going to court, it can avoid a conviction. Here, a judge will hold off on accepting a guilty plea and release the defendant on certain terms and conditions. Those terms may include drug and alcohol treatment, counseling, and additional programs. For misdemeanor offenses, deferred adjudication can last up to two years. A judge may allow a defendant to withdraw their plea or plead guilty to reduced charges if they successfully complete the agreed-upon terms.

(W.Va. Code § 61-11-22a (2023).)

Drug Court Programs

In counties where available, a judge may allow a defendant to participate in drug court either pre-adjudication (meaning before charges or a conviction) or post-adjudication (after a guilty verdict or plea). Drug offenders charged with a felony crime of violence or sex offense are not eligible for drug court. Neither are those who have convictions for these same offenses.

Drug courts involve intensive supervision by a team of professionals, including the judge, prosecutor, defense attorney, probation, and treatment provider. Participants must follow strict guidelines and appear before the court on a regular basis. Non-compliance can result in short-term jail stints. Judges can also provide rewards or incentives for compliance.

Being successful in drug court can result in the dismissal of charges, in some cases. Other times, a defendant might avoid or get reduced jail time but still have a conviction. The end result depends on the type of program entered into by the defendant.

(W.Va. Code §§ 62-15-1 and following (2023).)

Penalties for Failure to Call 911 for an Overdose in West Virginia

Any person who's using illegal drugs can face harsh penalties if they fail to seek medical help for another person experiencing a drug overdose. West Virginia law makes it a felony offense if the overdose results in the person's death. The convicted person faces one to five years in prison.

(W.Va. Code § 60A-4-416 (2023).)

Possible Defenses to Drug Possession Charges in West 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 have knowledge of the controlled substance being 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.

Overdose prevention and immunity. West Virginia offers limited immunity from a conviction for drug possession to Good Samaritans who call 911 for someone experiencing an overdose. To receive immunity, the person must remain on the scene and cooperate with authorities. The person experiencing the overdose may also receive immunity after participating in a recovery program. (W.Va. Code §§ 16-47-4, -5 (2023).)

Talk to a Lawyer

If you've been charged with a drug-related offense in West Virginia, contact a local criminal defense attorney as soon as possible. An experienced lawyer will discuss the circumstances unique to your situation, formulate possible defenses, and protect your constitutional rights.

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