Drug possession is a common offense in Virginia, but defendants aren’t always responsible for the drugs they are accused of possessing. While it may seem pointless to claim “The drugs weren’t mine” in a criminal case, as prosecutors and police officers hear that excuse often, you must remember that if the drugs really weren’t yours, you must stick to that claim. Your future and freedom rely on it.
Many defendants falsely assume that it is impossible to convince a judge and jury that the drugs in question truly did not belong to them. However, hiring an experienced criminal defense lawyer can bring hope to the situation. Depending on the circumstances of the case, a good attorney may provide enough evidence to prove that the drugs belonged to someone else, which may help get your charges reduced or dismissed.
It may help you to understand the difference between actual and constructive possession because prosecutors typically pursue constructive possession charges when a defendant claims the drugs were not theirs.
Actual possession is when a person has direct, physical control over drugs. This means the drugs could be in their hands, pockets, jackets, or otherwise in contact with the person. If you were found to be in actual possession of drugs, it may be easier to get convicted of drug possession than if the drugs were simply near or around you.
Constructive possession is generally circumstantial and occurs when a person is believed to have access to and knowledge of drugs. For example, let’s say your friend let you borrow their car, and you get pulled over for speeding. The officer asks to search the vehicle and you consent, waiving your Fourth Amendment protection from unreasonable search and seizure. While searching your friend’s vehicle, the officer finds a bag of cocaine and a handful of needles in the center console. You had no idea those items were in the vehicle, but you get charged with drug possession anyway because the officer believes you knew about and had access to the cocaine and drug paraphernalia.
In order to prove that you had constructive possession of controlled substances, Virginia prosecutors have the burden of proving the following:
- The defendant was aware of the presence and character of the contraband
- That the contraband was subject to the defendant’s dominion and control
To convict you of constructive possession, the prosecution has a challenging burden of proof to satisfy. They must prove that you were aware of the drugs being in the vehicle and their nature, as well as prove that you knowingly possessed them. In addition, prosecutors must prove that you voluntarily consented to an unreasonable search and seizure despite the officer lacking probable cause to do so.
Penalties for Drug Possession in VA
Although Virginia recently decriminalized marijuana possession offenses, possessing other types of illicit substances can carry life-changing consequences. If convicted, you may face the following drug possession penalties:
- Class 5 felony: Possessing a Schedule I or II controlled substance is punishable by 1 to 10 years in prison and/or a $2,500 fine.
- Class 1 misdemeanor: Possessing a cannabimimetic agent (also called a “synthetic cannabinoid”) or Schedule III controlled substance is punishable by up to 12 months in jail and/or a $2,500 fine.
- Class 2 misdemeanor: Possessing a Schedule IV controlled substance is punishable by up to 6 months in jail and/or a $1,000 fine.
- Class 3 misdemeanor: Possessing a Schedule V controlled substance is punishable by a $500 fine.
- Class 4 misdemeanor: Possessing a Schedule VI controlled substance is punishable by a $250 fine.
If you are facing drug possession charges in Fairfax, know that your case may be defendable with the help of our criminal defense lawyer at The Law Office of Ann Thayer, PLLC. We understand that it can be frightening to face charges for drugs that were truly NOT yours, which is why we will explore every avenue to help minimize the impacts of your case. With 15 years of experience and a track record for successful case results, our attorney is equipped to help prove that the drugs were not yours.
Contact us at (703) 940-0001 to learn more!
