Drug charges of any type are considered to be serious offenses in Virginia. The severity of the charge depends, in part, on the nature of the illegal substance. Virginia Code Sections 54.1-3446 through 54.1-3455 classify drugs into categories, or schedules (Schedule I through Schedule VI). Other than marijuana, the most common drugs such as cocaine, heroin, ecstasy, oxycontin, etc., are classified as Schedule I or II drugs. Any type of possession of these drugs is treated as a felony of some kind. As with all drug charges, selling the substances or having control of them with the intent to sell can result in more serious charges.
Marijuana is treated differently and less seriously than Schedule I and II drugs. The simple possession of marijuana can only support a misdemeanor charge. However, if the possession is coupled with distribution or intent to distribute there could be a felony charge depending on the quantity of marijuana involved.
Drug offenses typically come in two forms; Possession and Distribution (or intent to distribute). To find a person guilty of possession, the Commonwealth’s Attorney must prove that any substances found were actually illegal, that the person knew the substances were illegal drugs and the person exercised control “over the drugs”. Often times, this information is gathered from people making statements that show their guilt or from allowing police to search a car, their person or their home. Many cases might turn out much differently if people exercised their Constitutional rights not to incriminate themselves and to be free from unreasonable searches and seizures.
If illegal drugs are not found directly on a person or in some kind of container, such as a purse or backpack being held by the person, then a charge can be based on Constructive Possession. Constructive Possession is harder for the government to prove since it requires more than just finding drugs in a person’s house or car. The Commonwealth must prove the person was somehow exercising “dominion and control” over the substances. To prove Constructive Possession, the Commonwealth often relies on facts that show the person made some effort to hide or get rid of the drugs, the drugs were found close to the person or there was some kind of odor present. Most often, however, the Commonwealth relies on a person’s own statements.
Distribution of drugs includes more than “selling” illegal substances. In Virginia, a drug distribution is defined simply as the act of giving an illegal substance to another person.
Accommodation is the act of giving illegal substances to another person without any expectation of profit, for example, sharing drugs with someone. Accommodation is part of the Distribution statutes and carries with it a lesser penalty than being found guilty of “selling” illegal substances. However, the law places the burden on the defendant to prove that the act of Distribution was actually an Accommodation.
Distribution charges have different levels according to the amount of drugs involved or transported. The Distribution statutes include the acts of making or manufacturing drugs and Possession with Intent to Distribute.
FOURTH AMENDMENT RIGHTS
Under the Fourth Amendment, every person has the right to be free from unreasonable searches and seizures. This means that no person has to allow the police, without a warrant or probable cause, to search their person, their car or their home. The police cannot search for something based on a general hunch. While there are times when police can search without permission, they are trained to know the steps required, such as obtaining a search warrant. Typically, if police ask if they can perform a search they realize they do not have grounds to search without permission. Under those circumstances, there is no reason to agree to be searched by police.
The Fourth Amendment also protects you against unreasonable stops or seizures. The Constitution establishes an officer may not stop your vehicle, or you, without at least a reasonable suspicion you are violating a law.
Any type of Constitutional violation may form a basis to eventually dismiss a drug charge. Therefore, it is extremely important to accurately recall details of any police encounter.
FIFTH AMENDMENT RIGHTS
Most people have heard the Miranda rights read to characters on the television. Many shows remind us that we have the right to remain silent. It is true that every person has a right to refrain from making incriminating statements. Still, police are trained to get a person to make statements. Often a case ends in conviction based largely on incriminating statements made by the defendant. It is a crime to lie to police in an effort to hinder their investigation but it is not illegal to refuse to make a statement or to refuse to answer a question. A person’s refusal to make statements cannot be used against them in a criminal trial. Thus, there is usually no reason to make incriminating statements to police.
It is also important to remember that our Fifth Amendment rights and the Miranda warnings that we know from TV are there to help protect us from saying something that could eventually convict us of a crime. However, they only apply if the police ask us questions. They are not required for an arrest.