If you are reading this, I assume that you or a loved one is charged with Possession of Drugs (a.k.a. Possession of a Controlled Substance). This article will not deal with Possession of Marijuana. Look for a separate article about Marijuana on this web site. The punishments for Marijuana are dramatically lighter than the punishments for possession of drugs. If you are charged with a first offense Possession of Marijuana, and you don’t mind a criminal record for it, then you may not want to pay for a lawyer. However, if you are charged with Virginia Code §18.2-250: Possession of a Controlled Substance, it is highly recommended that you hire and experienced Drug Lawyer Fairfax VA. This is because there are defenses to these charges. And for first time offenders, there is a way to avoid a conviction all together.
The relevant portions of the Possession of a Controlled Substance Code is as follows: “It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription …”
The penalties vary depending upon what drug it is. For Schedule I and Schedule II, the penalty is a Class 5 Felony. (0-10 years in prison). Examples of Schedule I and II are Cocaine, Heroin, and many of the Prescription Drugs such as the opioid derivatives like Percocet and Oxycodone.
The penalty for possession of Schedule III (e.g. Vicodin, Tylenol 3 with Codeine, Ketamine, Anabolic Steroids) is a Class 1 Misdemeanor which carries up to a $2,500 fine and one year in jail.
The penalty for possession of a Schedule IV (e.g. Xanax, Valium, Klonopin, Soma) is a Class 2 Misdemeanor which carries up to a $1,000 fine and 6 months in jail.
The penalty for possession of Schedule V and VI (e.g. Schedule V = Robitussin AC, Phenergan with Codeine; Schedule VI = prescription drugs not included above) are Class 3 and 4 Misdemeanors respectively, which carry with them just fines and no jail.
Note that there are some drugs that the State believes are especially dangerous. These drugs have their own code section and own extra punishments. Most notably, the following drugs have extra penalties: Methamphetamine (“crystal meth”), flunitrazepam (a date rape drug) and gamma-butyrolactone; 1, 4-butanediol.
There are a number of defenses that experienced Drug Lawyers Fairfax VA use in helping their clients achieve dismissals. The most common is fighting the charge on an unconstitutional search. The Founding Fathers of our Country included into the Constitution a requirement that in order to search a car, the Police must have “probable cause” that a crime may have been committed. This is not proof that a crime occurred, but some type of evidence that would make a reasonable person suspect that a crime has occurred. So, for example, where a Police Officer pulls someone over for Speeding and asks to search the car, if the driver says “no”, unless the Police Officer has some reasonable cause to believe there are drugs in the car, all he has is a reasonable suspicion of speeding. That is not sufficient to support a search of the car.
Many people do not know their rights, and will agree to allow a Police Officer to search the car. If drugs are found, a Drug Lawyer Fairfax VA should be aware of a defense that is actually embedded in the Virginia Code. I am aware of this since I helped write the laws for 24 years as a Member of the Virginia House of Delegates. Written right into the §18.2-250 Code section is the following: “… ownership or occupancy of premises or vehicle upon or in which a controlled substance was found shall not create a presumption that such person either knowingly or intentionally possessed such controlled substance.” Thus, just because it is in your car, cannot on its own support a conviction. The Prosecutor must show something more, such as fingerprints on the bag, testimony of occupants that it was the Defendant’s or a confession.
Other defenses commonly used by an experienced Drug Lawyer Fairfax VA would be attacking the laboratory results, or other Constitutional Defenses, such as an illegal stop. As to the illegal stop, the Founding Fathers required in the Constitution that people cannot be stopped for no reason. The Police must have a “Reasonable Articulable Suspicion” that a crime has occurred to stop someone. So, if you were not violating any traffic law and a Police Officer just pulled you over because it was 3 a.m. and he figured “everyone driving around at 3 a.m. is up to no good”, his stop would be illegal. If the stop is illegal, then all the evidence is thrown out of court.
Finally, if it looks like there are no defenses that will likely yield a victory at trial, the good news is that the Virginia Code provides a method to get the case dismissed for first time offenders. This is known as the “251 Disposition.” This is short for Virginia Code §18.2-251 which allows the Court to continue the case for a period of time, usually one year, and upon the successful completion of drug education, drug evaluation and treatment (if needed). If during the continued period, no further violations occur and the Defendant successfully completes all the Court’s requirements, the case will be dismissed. Sometimes the Court also requires community service. There is usually a driver’s license suspension required also. You can get a restricted license to drive to and from work, school, child care, and medical appointments, among other things. Legislation is pending on allowing people to do extra community service in exchange for not having their license suspended.
The one down side that is that this 251 Disposition does go on your criminal record. So, while the record says “Charged Possession of Schedule II drug – Dismissed”, that notation stays on the criminal record and cannot be expunged (a.k.a. erased from the record.)