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Possession of Controlled Substance


Why you need a lawyer – Just look below:

Consequences of 18.2-250 Felony Possession of a Schedule 1(I) or 2(II)

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.

  1. Class 5 Felony up to 10 years in prison and fines up to $10,000
  2. Loss of driver’s license for minimum of six months
  3. Loss of rights for felony conviction (voting, firearms)
  4. Extensive and life-altering Felony Circuit Court probation (the majority of offenders end up serving more time for felony related probation violations)
  5. Difficult substance abuse classes and/or Narcotics Anonymous attendance requirements
  6. Loss of current or future employment – failed security checks
  7. Loss of federal employment

What the Law Offices of Christopher P. James can and will try to do: Investigate each charge fully

  1. File discovery prior to preliminary hearing
  2. File a request for Certificate of Analysis 19.2-187

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.

Reduction & Amendment 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.

Defenses built into the statute itself

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.

First offender program under VA code 18.2-251 Not expungable

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.

The Deferral Program is good and effective, but only good for people who are committed to complete it. It requires a lot of work.

  1. Felony probation, which is no joke and results in jail/prison if violated
  2. Substance Abuse Class with required attendance
  3. 6-month loss of license – restricted permit for work only
  4.  Urine screens & employment requirements
  5. 1- to 3-year good behavior with a return to court
  6. Court costs & fines for all of the above.

Yes, it’s a lot of work, and your case should be fully investigated before committing

Tips for not being charged with possession of cocaine, heroin, methamphetamine, Ecstasy, LSD, Oxycontin, and others:

  1. Do not carry anything on your person that’s illegal. If stopped in a car or after an arrest or at a party, the police will find it. Saying you are wearing someone else’s jacket does not work.
  2. Have your vehicle in proper order, no expired tags, burnt-out tail lights, etc., so you do not get pulled over in the first place.
  3. Do not get into a vehicle with someone you know who has illegal substances. The police will charge you too, thinking you are a part of the party even if you are not.
  4. You have few rights in your vehicle. If you hide controlled substances in your vehicle so that your parents or spouse will not find them in the house, they will find out quickly enough after the police charge you with possession after a routine traffic stop.
  5. Do not pester the police at a large party; if you confront them you will end up being the one being charged. That’s just life and the way it is.
  6. Do not wait for Virginia to become the next Colorado. Virginia ranks 49th out of 50 states in being considered conservative in regard to criminal laws.
  7. If you use illegal substances your home offers much more protection. If you sell drugs out of your home, the police have to have a warrant to get in. Your car or a public place offers no such protection.
  8. Concerts are monitored by police and parking lots are the worst. They will observe you from a distance, then approach and arrest or ticket you and ban you from the venue.
  9. Remember possession means “constructive possession”; even if it’s your friend’s pot and the police suspect your plans were to smoke it together, they will charge you both.  
  10. Keep your car clean and in working order, do not have marijuana on your person, don’t smoke in public places or bother police at parties and your likelihood of being charged is slim. Most cases are from neglecting the above tips.