Virginia controlled substance prosecutions call for a thorough defense, says Fairfax criminal lawyer

Virginia controlled substance prosecutions are part of the the failed drug war that wounds and destroys lives in its path. As a Fairfax criminal lawyer, I have successfully defended hundreds of drug defendants over the years. Drug defense is an opportunity to stand up for such Constitutional rights of criminal defendants as the right against unlawful searches, the right to remain silent with the police, and the right to have a lawyer present when being questioned by the police. This is also an opportunity to challenge the efforts of prosecutors and police to not only convict for possession of illegal drugs for personal use, but also to push for drug trafficking prosecutions even when a modest or small amount of substances is involved. This week Mary Landon Benton was reminded of the potential harshness of such prosecutions, when she lost the appeal of her conviction for her conviction at a bench trial of distributing cocaine under Virginia Code § 18.2-248, and possessing with intent to distribute Suboxone, under Code § 18.2-248(E1). Benton v. Virginia, Record No. 0631-21-1 (Oct. 11, 2022) (unpublished).

Police love uncovering illegal controlled substance activity taking place in automobiles

It never ceases to amaze me how often Virginia controlled substance possessors engage in reckless behavior that risks exposure, arrest, prosecution, conviction, and often harsh sentences. Consider Mary Benton’s approach of driving with a suspended license. A police detective found Benton driving, learned that Benton’s license was in suspended status, and stopped her vehicle. That a police officer of the rank of detective was monitoring Benton’s driving suggests that he was seeking an opportunity to make a pretextual stop and search for drugs, which unfortunately is generally allowed by the Supreme Court, so long as the police have an independent legitimate ground for stopping the suspect.  Whren v. U.S., 517 U.S. 806 (1996). This stop of Benton having taken place before the Virginia marijuana law changed, the police were able to take advantage of the then-existing state of the law that was too liberal about allowing car searches upon smelling a strong odor of marijuana in the vehicle. First, detective Cooley grabbed a bag from the hand of Benton’s daughter (Benton’s front seat pasture), which led to two small bags dropping on the ground that contained cocaine base /  crack cocaine and marijuana. Police then searched Benton’s car, in which they found what they concluded was Benton’s handbag (sharing space with the driver’s seat and center console), containing Benton’s identification card, mail and other items with her name, a digital scale with white residue, and two cellphones. Inside that handbag was a clutch handbag containing cocaine base / crack cocaine (6.72 grams) and powder cocaine (3.79 grams). Also in Benton’s purported handbag was a large wallet holding with identification cards with Benton’s name, and thirty-four Suboxone strips. Finally, in the clutch handbag was $520 in twenty-dollar bills.

Virginia prosecutors love presenting expert witnesses to prove intent to distribute drugs, which exposes criminal defendants to harsher sentencing

As frequently happens with Virginia controlled substance trafficking prosecutions, the assistant commonwealth’s attorney / prosecutor presented the testimony of police sergeant Allen, whose testimony included: (1) such circumstances as quantity, packaging and absence of smoking devices supported that Benton had an intent to distribute the illegal drugs found in her car; and (2) the discovery of drug residue on the digital scale retrieved from Benton’s handbag was indicative of cutting larger quantities into smaller amounts, for sale, whereas purchasers can easily weigh their product in the package (and what about mere users who buy in bulk and like to pre-measure their dosages?).

If you get prosecuted for violating the Virginia controlled substance law, start fighting the prosecution now

Virginia controlled substance defendants never are thrilled going to court, but that does not mean to avoid obtaining a qualified lawyer for yourself without undue delay. Having the right lawyer on your side can spell the difference between liberty and disaster. Fairfax criminal lawyer Jonathan Katz has successfully defended hundreds of drug defendants — as well as thousands of criminal defendants in general, and defending many Virginia DUI defendants — and will be delighted to pursue your best defense. Call 703-383-1100 to schedule your free initial in-person consultation with Jon Katz about your court-pending case.