This is typically small amounts of Cocaine, Heroin, Methamphetamine, LSD, Ecstasy and other common drugs available in small amounts for personal use. Larger amounts may result in a charge of 18-248 (Intent to Distribute) and have more significant penalties.
Get the charges reduced (see below), amended or dismissed if possible by fully investigating the stop and arrest and filing a request for a Certificate of Analysis under 19.2-187, in which the court must have the controlled substance tested by the forensic lab and timely filed with the court. If not filed timely the controlled substance cannot come in as evidence and this often results in a dismissal or reduction of the charge.
A felony conviction, even if it entails just probation and suspended prison time, is very disruptive to your future. That’s why it is always wise to see if the charge can be reduced or amended down from the “felony status” back to a “misdemeanor status”. This can be done in several ways. The most effective way is to get it amended to a schedule 3 or 4 substance which is a misdemeanor. If this can be done it will keep you out of the Circuit and Felony courts where the penalties are much more severe. This would be a favorable outcome second only to having the charge dropped, but each criminal case is based on the particular facts of the case, the prosecutors’ position or view of the case, the defendant’s prior criminal history and any legal and technical defenses that are at issue in the case.
Certificate of Analysis: The court has to test the substance if we request it and it has to be filed. They will grant the Commonwealth one continuance but often it takes the lab longer to get it back, sometimes they lose it, sometimes they mess up the paperwork. It is always wise to have one filed and not let them get by with a field test.
This should all be considered before opting for a deferral under code section 18.2-251 for the program for dismissal requires up to a year to complete and is very time consuming.
Why you were charged: On your person, in your car, after an arrest, the police found cocaine, heroin, LSD, Ecstasy, Oxycontin, methamphetamine, or other controlled substance. Thus under Virginia Law, “It is unlawful for anyone knowingly and intentionally to possess a schedule (I) or schedule (II) controlled substance (unless prescribed medically). Anyone in violation of this section shall be guilty of a Class 5 Felony and confined to jail not more than 10 years and a $10,000 fine, or both.” A 2nd or subsequent conviction shall have further and enhanced penalties based on the Virginia State sentencing guidelines as someone with a prior drug or felony conviction.
Upon prosecution of a person under this section, ownership or occupancy of the premises or vehicle in which the substance was found shall not create a presumption that such person knowingly or intentionally possessed such controlled substance. This law itself may be your best defense.
Virginia does have a first offender program which if fully completed will result in a dismissal of the charge; however, this dismissal is not expungable and the charge will remain on your criminal history, although marked as dismissed. The reason it is not expungable is to prevent people from using the program a second time, for if they don’t see it reflected in the record you could keep going into the program indefinitely each time you are charged.
Yes, it’s a lot of work, and your case should be fully investigated before committing