How Does the Virginia Code Define Simple Possession?

Virginia treats simple possession charges as serious crimes, however there are many paths towards a successful defense, such as the First Offender program.

The Virginia Code criminalizes the possession of certain drugs and other controlled substances.

However, the penalties for drug possession can vary considerably, usually based whether there’s proof of an intent to distribute.

In this article, we’ll talk about these two different types of drug possession.

We’ll also go over how Virginia distinguishes simple possession from possession with intent to distribute.

As is done in the Virginia code itself, this article also considers possession of marijuana and regular simple possession as two separate crimes.

Simple Possession

marijuana in glass spice jars

“Simple possession” refers to the crime of possessing a controlled substance without the intent to distribute it.

It’s called “simple” to distinguish it from several other drug crimes related to manufacturing and distribution of controlled substances.

Possessing any amount of a controlled substance is sufficient evidence for a simple possession charge.

However, remember that the State must prove any charges they bring against you.

For this reason, there are several requirements the state must meet to prove simple possession, which we’ll outline below.

These requirements, and the associated penalties, vary depending on the illegal substance in question.

Simple Possession of Marijuana

As of July 1st, 2020, the simple possession of marijuana is largely decriminalized in the state of Virginia.

As noted in the Virginia Code:

Any person who [possesses less than an ounce of marijuana] is subject to a civil penalty of no more than $25. A violation of this section is a civil offense.

Virginia Code § 18.2-250.1

Note, however, that the possession of more than an ounce of marijuana can still lead to more serious distribution charges.

Simple Possession of Other Drugs

To classify the possession of drugs other than marijuana, Virginia uses the schedule system. These schedules range from 1 to 6, with a schedule 1 possession charge being the most serious.

The penalties for possessing these controlled substances go as follows:

First Offenders

As one final note on possession, the Virginia court system generally punishes first offenders with reduced sentences and treatment programs.

Virginia generally places these more lenient punishments under their First Offender program, in which qualifying cases are instead tried in specific drug courts.

The Commonwealth usually deals with non-violent first-time offenders in drug court.

Often, these cases result in a period of extensive supervision rather than jail time.

The purpose of this program is to help first-time offenders get clean, while simultaneously lowering their chance of relapse.

Participating in Virginia’s drug court system includes mandatory drug testing and therapy, and eventually results in reduced or totally dismissed charges for those who successfully complete the program.

As stated, only non-violent first-time offenders are eligible for the drug court program, which generally further limits participation by the type of drug.

Marijuana, alcohol, and certain types of opiates such as heroin are all common drugs of choice for participants.

Intent to Distribute

drug packages, raw opium, drug dozens and weapons seized by police

Proving Intent to Distribute Through Volume

Depending on the circumstances of your arrest, the state may attempt to prove that you were planning to distribute the controlled substances in your possession.

This is a significantly more serious crime than simple possession, and often entails a mandatory prison sentence.

In most cases, the state will charge you with intent to distribute based on the volume of drugs in your possession.

In Virginia, the following amounts explicitly count as evidence of intent to distribute:

  • More than half of an ounce of marijuana. Note that this is punished under a different felony statute than other controlled substances.
  • 100 grams or more of heroin.
  • 500 grams or more of raw coca, cocaine, or its derivatives.
  • 10 grams or more of methamphetamines, or 20 grams of methamphetamine compounds.

Virginia law does not set explicit amounts for other types of controlled substances.

However, possessing very large amounts of any controlled substance will likely be take as evidence of intent to distribute.

Proving Intent to Distribute Through Other Evidence

By itself, possessing large amounts of a controlled substance is not proof of intent to distribute.

Instead, the state will search for corroborating evidence of intent.

The exact nature of this evidence will vary, but the following sources are common:

  • Communications from the accused, such as phone calls or text messages. Keep in mind that police need a valid warrant to search your phone or text message records.
  • The packaging that the police found substance in.
  • Large amounts of cash, especially large denomination bills.
  • Firearms and ammunition.
  • Distribution tools, such as scales, cutting tools, or manufacturing equipment.

As you can see, the state often relies on circumstantial evidence to argue for intent to distribute.

However, taken together, a large amount of circumstantial evidence can still result in a conviction.

For this reason, it’s important to hire an experienced criminal defense attorney who can argue the charges down to something like simple possession.


bag with weed on a rustic wooden table

Possession of any amount of an illegal substance is enough for a drug possession charge in Virginia.

However, related circumstances, such as whether or not there’s also evidence of distribution, can shift the case significantly.

If you’ve been arrested for possession of a controlled substance in Virginia, contact a lawyer immediately.

Even a single simple possession charge can result in large fines, a suspended license, and possibly even jail time.

By hiring the right legal counsel early, you’ll improve your chances of developing a strong defense and attaining a verdict in your favor.

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