The following statute §18.2-250 outlines the offense of
possession of a controlled substance. Whether the substance will be
considered a felony depends upon whether the substance is a schedule
I or II drug. The prosecutor will carry the burden of establishing
what type of drug was in the accused’s possession. This process
usually entails the confiscation of the drug and its delivery to a
science lab for analysis. The lab will then create a lab report
which will reflect what was analyzed, the amount of the substance
provided and the results of the analysis which will included what
schedule the drug falls under. Several defenses are carefully
scrutinized in possession cases.
First, these cases often involve suppression issues. In other words, the officer must have a proper basis to search your person. He may search you before placing you under arrest, for officer safety or if you give the officer consent to search your person. If the officer searches you for officer safety, the officer must be able to identify safety concerns. In that instance, the officer may search the outside of your clothing for objects that may be used as weapons without exploring into pockets. Another defense to possession is whether you in fact had dominion and control over the illicit substance. Cases specifically provide that mere proximity to drugs, without more evidence, does not create a presumption of knowing or intentional possession of the controlled substance. There must be some facts suggesting that the accused had some control over the drugs.
A. 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 or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act (§ 54.1-3400 et seq.).
Upon the prosecution of a person for a violation of this section, 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.
(a) Any person who violates this section with respect to any controlled substance classified in Schedule I or II of the Drug Control Act shall be guilty of a Class 5 felony.
(b) Any person other than an inmate of a penal institution as defined in § 53.1-1 or in the custody of an employee thereof, who violates this section with respect to a controlled substance classified in Schedule III shall be guilty of a Class 1 misdemeanor.
(b1) Violation of this section with respect to a controlled substance classified in Schedule IV shall be punishable as a Class 2 misdemeanor.
(b2) Violation of this section with respect to a controlled substance classified in Schedule V shall be punishable as a Class 3 misdemeanor.
(c) Violation of this section with respect to a controlled substance classified in Schedule VI shall be punishable as a Class 4 misdemeanor.
B. The provisions of this section shall not apply to members of state, federal, county, city or town law-enforcement agencies, jail officers, or correctional officers, as defined in § 53.1-1, certified as handlers of dogs trained in the detection of controlled substances when possession of a controlled substance or substances is necessary in the performance of their duties.
Upon pleading guilty to first time possession or if a judge makes a finding of guilt, the court may afford the individual a deferred disposition. Virginia Code §18.2-251 provides for the dismissal of the offense as if the offense never happened except for purposes of applying this code section to subsequent proceedings if the individual complies with certain conditions of probation. Those conditions usually include a period of supervised probation along with the successful completion of a drug education program, abstinence from drugs for the probationary period, the maintenance of employment and at least 100 hours of community service for a felony and up to 20 hours of service for a misdemeanor. In addition to these penalties for possession of an illicit substance, the Code also requires that the individual lose his driving privileges in Virginia for six months.
WHAT ABOUT MARIJUANA:
Possession of marijuana
is defined in code section 18.2-250.1. In Virginia, a first offense
for possession of marijuana is an unclassified misdemeanor with a
maximum 30 day jail sentence. A subsequent conviction for marijuana
then becomes a class 1 misdemeanor. However, the prosecutor carries
the burden of establishing a prior conviction through a certified
copy of the prior conviction order for possession of marijuana. As
with possession of any drug, the prosecutor must establish that the
accused was in possession of the drug. In other words, the
prosecutor must get into evidence the results of a lab test
establishing that the substance in the accused’s possession was in
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