In Virginia, if a criminal misdemeanor statute lists no possible jail time, then the offense actually is a Class 1 misdemeanor, carrying up to one year in jail and a fine of up to $2,500. Va. Code § 18.2-12.

Consequently — whether due to less attentive legislative drafting or otherwise — up to a year in jail and up to a $2500 fine apply both to (1) a conviction for unlawfully possessing drug paraphernalia under Virginia Code § 54.1-3466 (hypodermic syringe) (which does not list any jail penalty), and (2) a misdemeanor conviction under Virginia Code § 18.2-265.3(a) (selling or possessing with intention to sell paraphernalia for marijuana or a controlled substance). The first code section lists no applicable penalty. The second code section classifies the offense as a Class 1 misdemeanor, which carries the above-listed maximum jail time and fine.

If a prosecutor offers a defendant charged with drug possession to plead guilty or no contest to an amended charge of either of the above-two listed paraphernalia statutes, which is preferable to choose if either is preferable at all? The first statute (hypodermic syringes) sounds ugly at first blush for addressing injecting drugs into the bloodstream — which draws to mind heroin, for instance — but might be good for looking to untutored eyes as not carrying a risk of jail and therefore not treated as too serious by the Virginia legislature. The second statute (selling or possessing with intent to distribute drug paraphernalia) might at first blush look less ugly than possessing a hypodermic syringe, but can look distasteful for the provision of selling or possessing with intent to sell the paraphernalia.

As to paraphernalia, defendants should consult carefully with their lawyers before jumping on amending a charge from illegal drug possession to paraphernalia. A paraphernalia conviction not only still can be a scarlet letter, but is a big immigration status hurdle or even poison for those who are not United States citizens. If the case is not clearly winnable and worthy of negotiation, better avenues than paraphernalia should be considered for negotiations, including dismissing the case in six months or a year for completion of such conditions as drug education, clean drug testing, and community service; admitting to sufficient facts to convict under Va. Code § 19.2-303.2 for later dismissal if probation is successful (but beware of the fallout if probation is deemed violated); or amending the charge to disorderly conduct or trespassing.

Reaching a good decision on negotiations and going to trial should be backed up with full preparation for trial and negotiations, with the lawyer being fully informed and fully informing the client.