Virginia Drug Distribution Charges
Experienced Attorneys Ready to Fight for You
Distribution of drugs is a very serious offense in Virginia. Being charged with possession with intent to distribute drugs may result in serious consequences depending on the nature of the offense. A drug distribution charge could result in a felony conviction, jail time, probation, difficulty with employment and maintaining a security clearance, or a permanent criminal record. For these reasons, it is important to be represented by an aggressive and accomplished attorney who is not only experienced in fighting these types of cases, but who also is familiar with the ins and outs of the procedure of distribution cases in Virginia courts. This is critical to being able to successfully guide any client to the best outcome.
Some of the factors to take into account in any drug distribution case are:
- Type of drug
- Quantity
- Where were the drugs found
- How the drugs are packaged
- Whether money was exchanged
- Whether there is cash present
- Who else is around
Is the Defendant in Possession at All?
The first question of any possession with intent to distribute charge is – is the individual in possession of the drugs at all? This concept is often more complicated than it initially seems and is often a major ground to fight against a distribution charge.
There are two different types of possession under Virginia law:
Actual Possession
This form of possession is fairly straightforward. If drugs are being held by an individual, or are found on the individual’s person, that person may be in actual possession of the drugs. Someone is in actual possession if there are drugs in an individual’s hand, wallet, pocket or purse. The person is actually holding them and is in actual possession.
However, possession has to be made knowingly. That means, a person must know about both the possession and the nature of the substance.
For example, if a person borrows a jacket, and they are unaware of drugs in the jacket pocket, they are not in knowing possession of the drugs. Another example: a person takes a bottle of pills from his friend because he has a headache. That person believes the bottle is full of aspirin, but the bottle is really full of illegal drugs. That person is not in knowing possession of the drugs because he is unaware of the nature and substance of drugs in the bottle.
Constructive Possession
Virginia law says that an individual may still be in possession of drugs even though they are not physically holding the drugs on their person. For instance, someone may be in constructive possession of drugs in their bedroom even though the police find that person outside of their home. Another common situation is if drugs are found in a car with multiple people, or at a party where multiple people are using drugs in a common area.
The important question for any constructive possession case is always: Is that person exercising dominion and control over the drugs? A judge or jury will look at several multiple factors when determining whether a person is exercising dominion and control over the drugs. Some of the most important factors for dominion and control are:
How close are the drugs? How close or far away a person from the drugs is always an important factor. The closer someone is to the drugs, the more likely it is that can exercise dominion and control. If the individual can grab the drugs from where he is found, that is a sign he could be in constructive possession of the drugs. If individual is too far away to grab the drugs, that is a sign that he is not.
Are the drugs in plain view? Whether or not a person can see the drugs, or immediately see the drugs, is another important factor. The drugs may be in a box sitting right in front of him. But if he cannot see that the box contains drugs, this is a sign that they are not in possession.
Who owns the place where the drugs are located? The owner of the car, house, room, or backpack where the drugs are found is presumed to have dominion and control over the things inside. Including drugs. This presumption can be challenged because other people can bring things into another person’s house or car, including drugs. However, this is always a factor for the court to consider.
Are there signs of joint use? This could include smoke or paraphernalia inside the house or car showing that the drugs were used.
It is important to remember that there are an infinite number of factual scenarios that can occur in a possession with intent to distribute case. It is very important that you go to court prepared with an experienced and aggressive Virginia criminal defense lawyer. An experienced Virginia defense attorney will know the best defense to put forward the best defense for the facts in your case to obtain the best result.
Possession with Intent to Distribute v. Simple Possession
A central question in every distribution charge is whether the Commonwealth can prove that the defendant possessed drugs with the intent to distribute them, or simply for personal use. If someone is in possession of drugs solely for personal use, simple possession is a significantly lesser crime than possession with intent to distribute.
Whether someone will be charge with possession of drugs for personal use or to distribute is, often times, highly subjective. Police officers and detectives that bring charges are often very aggressive and tend to charge someone with distribution if they can. This gives police and prosecutors leverage to force a defendant into a plea to avoid the risk of a distribution charge. But like any smart shopper, a drug user may be buying in bulk. But that doesn’t mean that the drugs are not for personal use. An individual can still be charged with distribution based solely on the quantity of drugs, even if there is no evidence that individual ever sold or gave the drugs to anyone.
Some factors to consider in determining whether the drugs are for personal use versus distribution:
Did officers observe a transaction? Often police will set up a drug deal and wait to make the arrest. Officers can be undercover to set up a buy. Or they can use a confidential informant, usually someone with a pending drug charge trying to reduce their own charges, to set someone up. If officers have observed a transaction, the amount of drugs usually will not matter.
How were drugs packaged? If the drugs are broken down into individual serving sizes, or small baggies to be sold separately, this could indicate that the drugs were meant to be sold.
Is there a large amount of cash? If a defendant is arrested and has a large amount of cash on them, this can be a sign of a distribution. Drugs are almost always sold for cash, and the cash is a sign that the defendant has been dealing.
Cell phone evidence? If officers arrest a defendant for distribution of drugs, they will almost always seize the defendant’s cell phone. With a warrant, or consent of the defendant, they will search the phone looking for evidence of other transactions to show that the defendant was in the business of dealing drugs.
It is important to remember that there is an infinite number of factual scenarios that can occur in a possession with intent to distribute case. It is very important that you go to court prepared with an experienced and aggressive Virginia criminal defense lawyer. An experienced Virginia defense attorney will know the best defense to put forward the best defense for the facts in your case to obtain the best result.
Virginia Criminal Penalties for Possession With Intent to Distribute Drugs
The range of punishment in Virginia for a conviction of possession with intent to distribute drugs is severe and varies greatly depending on the type of drug and the amount. Below is some of the penalties for being convicted of distribution of drugs.
Because the penalties for these crimes can be severe, it is important to remember that an experienced criminal defense attorney is critical at the sentencing stage of your case. They can minimize the sentence to serve, argue to the judge and prosecutor to have part of the time suspended to reduce and limit the time of active incarceration, and help you navigate the best outcome for your case.
Distribution of Schedule I or II substance – Va. Code 18.2 § 248
First Offense: 5 – 40 years
Second Offense: 5 years – Life (mandatory minimum 3 years)
Third Offense: 10 years – Life (mandatory minimum 10 years)
It is important to note that the mandatory time for these sentences may be higher depending on the weight, quantity, and type of drug
Distribution of Marijuana – Va. Code 18.2§ 248.1
½ ounce or less: 0 – 12 months (misdemeanor)
½ ounce – 5 lbs: 0 – 10 years
More than 5 lbs: 5 years – 30 years
Distribution of Schedule III substance – Va Code 18.2 § 248(E)(1)
0 years – 10 years (class 5 felony)
Distribution of Schedule IV substance – Va Code 18.2 § 248(E)(2)
0 years – 5 years (class 6 felony)