What to Do If You Are Charged With Drug Possession in Virginia

The information in this article is for general informational purposes only and does not constitute legal advice. Laws change and individual circumstances vary. Consult a licensed Virginia attorney about your specific situation. Reading this article does not create an attorney-client relationship nor does merely contacting our office through this website or any other means.

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Virginia’s approach to drug possession has changed meaningfully over the past several years, but the state continues to impose significant criminal penalties for possession of controlled substances. A possession charge in Montgomery County, Radford, or elsewhere in the New River Valley can carry consequences ranging from a fine to years in prison, depending on the substance and the circumstances. Understanding the legal framework is the first step toward making informed decisions.

Virginia’s Drug Schedule System

Virginia classifies controlled substances into six schedules, reflecting the legislature’s assessment of each drug’s potential for abuse and accepted medical use. The schedule classification determines the severity of the charge.

Schedule I substances have no accepted medical use and a high potential for abuse. This category includes heroin, LSD, MDMA (ecstasy), and certain synthetic drugs.

Schedule II substances have a high potential for abuse but some accepted medical use, with severe restrictions. This category includes cocaine, methamphetamine, oxycodone, fentanyl, and other prescription opioids when possessed without a valid prescription.

Schedule III substances include anabolic steroids and certain other drugs with moderate abuse potential.

Schedule IV substances include benzodiazepines such as Xanax and Valium when possessed without a valid prescription, as well as certain other drugs.

Schedule V and VI substances have lower abuse potential and include some over-the-counter preparations and compounds.

The schedule of the substance charged determines the penalties that apply.

Felony vs. Misdemeanor Possession

Virginia Code § 18.2-250 governs possession of controlled substances. The penalty classification depends on the schedule:

• Schedule I or II: Felony, punishable by 1 to 10 years in prison (or, at the jury’s discretion, confinement in jail for up to 12 months and/or a fine up to $2,500)
• Schedule III: Class 1 misdemeanor (up to 12 months in jail, $2,500 fine)
• Schedule IV: Class 2 misdemeanor (up to 6 months in jail, $1,000 fine)
• Schedule V: Class 3 misdemeanor (fine only, up to $500)
• Schedule VI: Class 4 misdemeanor (fine only, up to $250)

This means that possessing even a small amount of cocaine, heroin, fentanyl, methamphetamine, or prescription opioids without a valid prescription is a felony in Virginia. The quantity possessed does not change the felony classification for simple possession, though larger quantities may support charges of possession with intent to distribute, which carries far more severe penalties.

Marijuana: Virginia’s Evolving Law

Marijuana occupies a distinct legal category in Virginia following several years of legislative changes.

As of July 1, 2021, Virginia legalized simple possession of up to one ounce of marijuana for adults 21 and older. Adults may also grow up to four plants at home for personal use.

Possession of more than one ounce but not more than one pound by an adult 21 or older is a civil penalty of up to $25, not a criminal offense.

Possession of more than one pound remains a criminal offense under Va. Code § 18.2-248.1, carrying a felony charge.

For individuals under 21, possession of marijuana remains subject to civil penalties and, for those under 18, may involve juvenile court proceedings.

The legalization of personal amounts of marijuana does not mean that marijuana is unregulated or consequence-free. Driving while impaired by marijuana remains illegal. Possessing marijuana in certain locations such as schools or correctional facilities remains prohibited. And possession of concentrates or other marijuana products may be treated differently depending on quantity.

Prescription Drug Possession

A common misconception is that having a prescription automatically protects against any possession charge. In Virginia, you must have a valid, current prescription for the specific substance in your possession. Possessing someone else’s prescription medication, even if it was given to you by a friend or family member, can result in a felony possession charge if the medication is a Schedule I or II controlled substance.

The First Offender Deferral: Va. Code § 18.2-251

One of the most important provisions in Virginia drug law is the first offender deferral program under Virginia Code § 18.2-251. This statute allows a court, in appropriate circumstances, to defer proceedings against a first-time offender charged with drug possession, rather than imposing an immediate conviction.

To be eligible:

• The defendant must not have previously been convicted of a drug offense (or previously used § 18.2-251)
• The defendant must plead guilty or not contest the charge
• The court must find the program appropriate given the circumstances

If the court accepts the deferral, the defendant is placed on probation and required to complete:

• Drug and alcohol education or treatment as directed by VASAP or another approved program
• Any community service ordered by the court
• Random drug testing during the probationary period
• All other conditions imposed by the court

If the defendant successfully completes the deferral period (typically 12 months or more), the court dismisses the charge. Upon dismissal, the defendant may be eligible to have the record of the charge expunged.

The deferral is only available once. Using it exhausts the option permanently. For that reason, the decision to use § 18.2-251 deserves careful consideration with an attorney’s guidance.

Impact on Driver’s License

Prior to 2020, a drug conviction in Virginia triggered an automatic license suspension. That automatic suspension has been repealed, and a straightforward drug possession conviction no longer automatically revokes driving privileges solely on the basis of the drug conviction. However:

• If the drug offense involved a vehicle, driving privileges may be suspended as part of sentencing
• VASAP completion requirements tied to a deferral may affect driving if conditions are not met
• Federal law still disqualifies certain individuals with drug convictions from operating commercial vehicles under CDL regulations

Collateral Consequences of a Drug Felony

A felony conviction for drug possession carries consequences beyond criminal sentencing. These include:

• Loss of the right to possess firearms under Virginia and federal law
• Ineligibility for certain federal student loans and financial aid
• Disqualification from certain professional licenses
• Potential immigration consequences for non-citizens, including deportation or inadmissibility
• Housing restrictions (many public housing programs prohibit residents with drug felonies)
• Employment background check impacts

These collateral consequences are often as significant as the criminal sentence itself, and they are permanent unless rights are later restored through an appropriate legal process.

Defenses in Drug Possession Cases

A number of defenses may be available in a drug possession case depending on the facts:

Constructive possession: The prosecution must prove that the defendant knew about the substance and had the ability to exercise dominion and control over it. Mere proximity to drugs is not enough. If the drugs belonged to someone else and there is no evidence linking you to them, constructive possession may be contested.

Fourth Amendment challenges: If police obtained the drugs through an unlawful search, a motion to suppress the evidence may be filed. If the motion is granted, the drugs cannot be used as evidence, which typically results in a dismissal. Search and seizure issues are common in drug cases and are discussed in more detail in a separate article on this site.

Lack of knowledge: If you genuinely did not know you possessed a controlled substance, such as a case where a substance was placed in your bag without your knowledge, knowledge is an element the Commonwealth must prove.

Valid prescription: If you had a valid prescription for the substance in question, this is a complete defense.

What to Do After a Drug Arrest

Being charged with drug possession does not automatically lead to a conviction. The steps you take immediately after the arrest matter.

• Do not make statements to law enforcement about where the drugs came from, who they belong to, or any other details without an attorney present.
• Preserve any evidence that may be relevant to your defense: receipts, communications, prescription bottles, or anything that supports your position.
• Contact a criminal defense attorney promptly. The earlier an attorney is involved, the more options are available. In the New River Valley, drug charges are prosecuted in the General District Courts and Circuit Courts of Montgomery County, Pulaski County, and surrounding jurisdictions.

If you are a student at Virginia Tech, Radford University, or another regional institution, a drug charge can also trigger student conduct proceedings separate from the criminal case. These proceed on different timelines and have different standards than the criminal case.

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This article is general information only and is not legal advice. Do not rely on this article to make decisions about your specific situation. Contact Valley Legal or another licensed Virginia attorney to discuss your case. Attorney advertising.

Valley Legal, PLLC is located at 107 Pepper St SE, Christiansburg, Virginia 24073, and serves clients throughout the New River Valley of Virginia, including Montgomery County, Blacksburg, Radford, Pulaski, and surrounding communities.