Whether a drug crime is charged as a misdemeanor or a felony depends on what type of drug is involved and whether the drug is for personal use or for trafficking or sale.
Simple possession of Schedule I or Schedule II drugs, which include drugs with a high risk of addiction and few or no accepted medical uses, is charged as a Class 5 felony. Possession of other types of drugs is charged as a misdemeanor. These misdemeanors range from a Class 1 misdemeanor for possession of a Schedule III controlled substance to a Class 4 misdemeanor for possession of a Schedule VI drug.
Distribution of drugs or possession with intent to distribute is normally charged as a felony when the crime includes Schedule I or Schedule II drugs or large quantities of marijuana. Otherwise, distribution of other schedules of controlled substances is normally charged as a misdemeanor.
Common Defenses to Drug Charges
If you are charged with a drug crime in Richmond or elsewhere in Virginia, you may have certain factual and legal defenses available to you, such as:
- Challenging the legality of law enforcement’s search and seizure of the drugs, including challenging the lawfulness of a traffic stop or arguing that police searched your person, vehicle, or home without a warrant when one should have been obtained
- Pointing out a lack of proper laboratory testing that would have confirmed that a substance was a controlled substance
- Contesting the quantity of drugs found, which may help reduce the severity of the charge
- Challenging whether drugs were intended for distribution or sale, which can help reduce a charge to a less severe simple possession charge
- Proving that you had a valid prescription for prescription drugs in your possession
- Challenging whether you had constructive possession of drugs found in your vehicle or your home, including by showing that you had no knowledge of the drugs or the ability to exercise control over them
Drug Charges – expansion of Good Samaritan Law
HB 1821: Arrest and prosecution when experiencing or reporting overdoses. Prohibits the arrest or prosecution of an individual for the unlawful purchase, possession, or consumption of alcohol, possession of a controlled substance, possession of marijuana, intoxication in public, or possession of controlled paraphernalia if (i) such individual, in good faith, renders emergency care or assistance, including cardiopulmonary resuscitation (CPR) or the administration of naloxone or other opioid antagonist for overdose reversal, to an individual experiencing an overdose while another individual seeks or obtains emergency medical attention; (ii) such individual remains at the scene of the overdose or at any location to which he or the individual requiring emergency medical attention has been transported; (iii) such individual identifies himself to the law-enforcement officer who responds; and (iv) the evidence for a prosecution of one of the enumerated offenses would have been obtained only as a result of the individual’s rendering emergency care or assistance.
Current law prohibits arrest or prosecution for such offenses only to an individual who seeks or obtains emergency medical attention for himself or another individual or who is experiencing an overdose when another individual seeks or obtains emergency medical attention for him.
Marijuana Legalization
HB 2312: Marijuana; legalization; retail sales; penalties. Eliminates criminal penalties for simple possession of up to one ounce of marijuana by persons 21 years of age or older, modifies several other criminal penalties related to marijuana, and imposes limits on dissemination of criminal history record information related to certain marijuana offenses. The bill creates the Virginia Cannabis Control Authority (the Authority), the Cannabis Oversight Commission, the Cannabis Public Health Advisory Council, the Cannabis Equity Reinvestment Board and Fund, and the Virginia Cannabis Equity Business Loan Program and Fund and establishes a regulatory and licensing structure for the cultivation, manufacture, wholesale, and retail sale of retail marijuana and retail marijuana products, to be administered by the Authority. The bill contains social equity provisions that, among other things, provide support and resources to persons and communities that have been historically and disproportionately affected by drug enforcement.
The bill has staggered effective dates, and numerous provisions of the bill are subject to reenactment by the 2022 Session of the General Assembly.
Also see, the state cannabis website for more information.
