Possession of a Controlled Substance in West Virginia

All states regulate the possession of controlled dangerous substances (CDS), though each differs in its exact definition of CDS and the penalties for illegal possession. West Virginia classifies not only well-known drugs like marijuana, heroin, and cocaine as CDS, but also the compounds used to manufacture them.

This article discusses the illegal possession of CDS for personal use only. Illegally making or selling CDS carries different penalties. For more information on illegal CDS manufacture and sale, see Sale of Controlled Substances in West Virginia.

Also, while marijuana is considered a CDS, this article does not cover West Virginia’s marijuana possession and sale laws. To learn more about that topic, see West Virginia Marijuana Laws.

How West Virginia Classifies CDS

West Virginia divides CDS into five “Schedules”. Schedule I lists the most dangerous drugs, which have a high probability of abuse and addiction, and no recognized medical value. Schedules II, III, IV, and V decrease in dangerousness and probability of abuse, and increase in recognized medical uses. (W.V. Ann. Code § 60A-2-204, -206, -208, -210, & -212.)

Penalties for Possessing CDS

It is illegal in West Virginia to possess CDS without a valid medical prescription. (W.V. Ann. Code § 60A-4-401, & -407.)

First offenses

A defendant charged with CDS possession who has no prior drug convictions in West Virginia, any other state, or federally is entitled to a “conditional discharge.” This means that, without entering a judgment, the judge will defer the court proceedings, and place the defendant on probation with terms and conditions. If the defendant fulfills these terms and conditions, the judge will discharge the defendant, and dismiss the proceedings. Six months after a successful discharge and dismissal, the defendant may apply to the judge to expunge the record of the defendant’s arrest and trial. The judge is required to grant an expungement if the defendant has committed no further violations during the six months following the probation period.

For more information about expunging your CDS possession record, see Expunging a Criminal Record in West Virginia.

Because each person is entitled to only one conditional discharge, courts will need access to the record of the dismissed case. Even after discharge, dismissal, and expungement, a confidential record will remain on file for court officials and prosecutors.

If the defendant violates the terms and conditions of the probation, the judge will proceed with a trial. Penalties include a fine of up to $1,000, at least 90 days (and up to six months) in jail, or both.

Second and subsequent offenses

Second and subsequent offenses proceed directly to trial, and harsher fines and penalties may apply.

Talk to an Attorney

CDS possession convictions can incur harsh fines and long periods of incarceration. A local lawyer who practices CDS defense will review the facts of your case, explain your options, and advise you of the possible consequences.

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