Firearm drug defense goes against two statutory monstrosities, says Fairfax criminal lawyer

Firearm drug defense goes against two Virginia statutory monstrosities. As a Fairfax criminal lawyer I am constantly working to avoid the harsh collateral consequences and sentences that can follow from a drug conviction, a firearm / handgun / pistol / weapon conviction, or from a combination of the two. Virginia criminal law means business in imposing mandatory minimum prison sentencing for simultaneously possessing a firearm while unlawfully possessing or trafficking in a Schedule I or II controlled substance. You get no pass for having a concealed handgun carry permit. You do not avoid a conviction by claiming that the firearm was not used (versus simply possessed) in relation to the drugs. Instead, you get no choice other than fully defending yourself against this draconian statute, which provides: “… B. It shall be unlawful for any person unlawfully in possession of a controlled substance classified in Schedule I or II [for instance, cocaine, methamphetamine, cocaine, or LSD] of the Drug Control Act… to simultaneously with knowledge and intent possess any firearm on or about his person. A violation of this subsection is a Class 6 felony and … any person convicted hereunder shall be sentenced to a mandatory minimum term of imprisonment of two years. C. It shall be unlawful for any person to possess, use, or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit the illegal manufacture, sale, distribution, or the possession with the intent to manufacture, sell, or distribute a controlled substance classified in Schedule I or Schedule II of the Drug Control Act… or more than one pound of marijuana. A violation of this subsection is a Class 6 felony, and constitutes a separate and distinct felony and any person convicted hereunder shall be sentenced to a mandatory minimum term of imprisonment of five years.” Virginia Code § 18.2-308.4  Note how over one pound of marijuana is included in the foregoing trafficking five year mandatory minimum sentencing scheme. Don’t expect a police officer, Virginia prosecutor / assistant commonwealth’s attorney, or jury to accept a claim that you were not in possession of the firearm because you forgot you had left it in your vehicle from which you illegally possessed or trafficked in a Schedule I or II drug or trafficked more than a pound of pot.

If I displayed a firearm yesterday in my pickup truck, will I be culpable for that firearm when I am with it in the truck the next day?

Perhaps the Wooldrige firearm drug case is unpublished for being so obvious not to win on appeal. Wooldridge v. Commonwealth of Virginia, Record No. 1807-23-3 (Feb. 4, 2025) (unpublished). A police confidential informant (CI) — they usually work with cops to reduce their own drug prosecution and sentencing exposure — arranged for a drug deal with Wooldridge, who told the CI that Wooldridge could use every dollar he could get from selling drugs and his rifle, both of which he displayed to the CI at the same time. Wooldridge was unable to successfully argue that the rifle had to be displayed in a threatening manner to qualify for the five-year mandatory minimum statutory sentence for possessing a firearm while trafficking in drugs. An irony here is that we expect firearms usually to be possessed to protect against being robbed of drugs or money, or for the drug dealer to rob a customer or to threaten to keep the customer in line, but here Wooldridge apparently possessed the rifle near his drugs simply to offer the rifle for sale.

If I am caught red handed in a firearm drug arrest, is snitching my only option?

Many Virginia criminal defendants caught red handed with in firearm drug arrests jump at the chance to snitch/ cooperate with police and prosecutors in the hope of avoiding a prosecution that exposes them to mandatory minimum sentencing.  If a potential client comes to me seeking to snitch, I tell them I am not interested in such assistance nor advice, and advise them to seek another lawyer. One thing that does jump off the page on this topic is that Wooldridge’s snitch’s name is repeated again and again in the Wooldridge Virginia Court of Appeals appellate opinion. Snitches do not want to be outed unnecessarily, and that is some outing.

What do I do if arrested for an alleged Virginia drug crime?

If you are arrested for an alleged Virginia firearm drug offense or any other alleged crime, do your homework to find the best possible attorney for you. Top-rated Fairfax criminal lawyer Jonathan Katz has successfully defended hundreds of drug defendants, hundreds of firearms and weapons defendants, and thousands of criminal defendants in general. Schedule your free in-person confidential consultation with Jon Katz about your court-pending prosecution, at 703-383-1100