Drug scheduling and Virginia sentencing defense are key considerations for fighting controlled substance prosecutions

Drug scheduling and Virginia sentencing defense are key things to consider when fighting your controlled substance prosecution, whether that be for allegations of  possession / use, dealing, or manufacturing. As a Fairfax criminal lawyer, I have successfully defended hundreds of people accused of controlled substance offenses, from small quantities to amounts large enough for thousands of doses. Keep in mind that the federal and Virginia controlled substance law are similar in some ways and very different in others, including the very harsh federal sentencing and pretrial detention risks, that make a Virginia state prosecution ordinarily more desirable than a federal prosecution for alleged controlled substances. (Watch out for when separate state and federal prosecutions proceed (probably at different times if that happens) under the separate sovereigns doctrine that counters Constitutional Fifth Amendment Double Jeopardy arguments. Both the Virginia Code and United States Code address scheduling of drugs, with Virginia having six schedules (from Virginia Code § 54.1-3445 through § 54.1-3455 On top of that are controlled substance analogs, mainly defined in the Virginia Code as a” substance the chemical structure of which is substantially similar to the chemical structure of a controlled substance in Schedule I or II and either (i) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in Schedule I or II or (ii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in Schedule I or II…” Virginia law punishes drug analogues pursuant to Virginia Code § 54.1-3456. Federal law has five controlled substance schedules. The United States Code defines controlled substance analogues — also known as designer drugs — at 21 U.S. Code § 813.

How will Virginia controlled substance and marijuana defense change with the upcoming downgrading of the federal drug scheduling of marijuana?

In December 2025, Donald Trump ordered that marijuana drug scheduling be reset to Schedule III, which is defined “as drugs with a moderate to low potential for physical and psychological dependence. Schedule III drugs abuse potential is less than Schedule I and Schedule II drugs but more than Schedule IV. Some examples of Schedule III drugs are: products containing less than 90 milligrams of codeine per dosage unit (Tylenol with codeine), ketamine, anabolic steroids, testosterone.” Before this change, marijuana was for decades designated federally as a Schedule I drug, meaning “The drug or other substance has a high potential for abuse…  The drug or other substance has no currently accepted medical use in treatment in the United States… There is a lack of accepted safety for use of the drug or other substance under medical supervision.” Virginia has already made substantial advances with reforming personal use and possession of marijuana, growing of a limited number of cannabis plants for personal use, and medical marijuana. Virginia still needs to narrow the gap between harsh mandatory minimum sentencing for importation of over five pounds of marijuana into Virginia and the absence of legalized recreational cannabis when personal possession and use is generally lawful in Virginia. The easing of the criminal treatment of marijuana on the federal level is part of the widespread cannabis reform we have seen over the years, and may spur even further marijuana reform in the commonwealth of Virginia. Whether that spurs Virginia reform with other controlled substances remains to be seen.

Should I let my guard down as a potential Virginia controlled substance defendant while reform efforts proceed?

Do not let your guard down as a Virginia controlled substance defendant or suspect — regardless of any marijuana drug scheduling changes — no matter how favorable reform efforts seem. Police, prosecutors and judges are accustomed to dealing firmly with drug enforcement, and it is essential to overcover risk regardless of what crime you are accused of. Jurors should not be expected to be monolithically (if at all) of the view that controlled substances are a victimless crime that does not need firm enforcement and punishment. Certainly, your Virginia criminal lawyer can bring up controlled substance reform efforts and legislation in addressing plea negotiations and sentencing, for instance, but no one approach should be relied upon to the disregard of the rest in your criminal lawyer’s defensive arsenal.

What should I do when accused of a Virginia controlled substance offense?

Navigating your Virginia controlled substance prosecution by yourself is unwise and potentially dangerous, and it makes no sense to expect sympathetic jurors, judges and prosecutors merely due to marijuana drug rescheduling. When you meet with potential attorneys for such defense, you might consider asking such questions as the reason the lawyer does criminal defense and drug defense; any preference the attorney has for defending or prosecuting such allegations; the lawyer’s commitment, experience and ability with such defense; the lawyer’s advocating ability both orally and in writing; the lawyer’s absorption and understanding if the relevant Fourth Amendment search and seizure case law and other relevant law in pursuing suppression of evidence and other relief on your behalf; and the lawyer’s trial ability and skills for persuading judges and jurors in pursuing your best defense.

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense against Virginia felony, misdemeanor and DUI prosecution. For your free in-person confidential initial consultation with Jon Katz about your court-pending prosecution, call 703-383-1100, Info@KatzJustice.com, and (text) 571-406-7268.