Virginia drug possession is a felony offense for unlawful possession of Schedule 1 & 2 drugs- Fairfax criminal lawyer says not to felonize personal drug use

Virginia drug possession law is harsh with Schedule 1 & 2 drugs, making that crime a felony. As a Fairfax criminal lawyer, I know that such a harsh penalty not only exposes criminal defendants to the risk of substantial incarceration time and significant suspended jail time, but also that any felony conviction can be devastating to one’s reputation, security clearance prospects, and other vital personal concerns. Legislation in both chambers of the Virginia legislature this session has been introduced to change felony personal drug possession to a misdemeanor offense. The House version recently got tabled, but if the legislation does not become law this year, hopefully we will not need to wait beyond next year’s legislative session for it to become a reality.

Should I care whether my drug case category is a felony or misdemeanor if I am likely to get a 251 disposition?

Virginia Code § 18.2-251 (also known as 251) certainly applies both to felony and misdemeanor personal drug possession, for ultimately dismissing the prosecution. However, an acquittal or unconditional dismissal is preferable to a 251. Moreover, employers, security clearance authorities and others may treat a 251 as not much better than a conviction. Additionally, a violation of the terms and conditions of a 251 disposition can lead to a conviction and sentencing, which can include active incarceration. Finally. people are not eligible for a 251 disposition when they have relevant prior drug convictions or a prior 251 disposition. A drug misdemeanor simply sounds better than a drug felony, if a Virginia criminal defendant must choose between the two.

Why is a Virginia drug possession conviction available against me even for residue?

Current Virginia drug possession law allows a conviction for possessing even a residue of an illegal drug.  The proposed legislation for changing personal felony drug possession to misdemeanor possession also provides that merely possessing drug residue is not a crime. Under the present Virginia law, I am ready to argue at trial that possessing drug residue, by itself, is insufficient to prove guilt beyond a reasonable doubt. That is because drug possession is defined as knowledge, dominion and control over the allege contraband.  Clodfelter v. Commonwealth, 218 Va. 619, 623 (1977). Consequently, the mere possession of such residue, with nothing more, does not establish that the defendant knows that the residue is present nor that the defendant knows that it is illegal.

How do I contact my legislators to urge them to support the proposed legislation to no longer make personal use possession of schedule 1 and 2 drugs a felony, and to no longer make it a crime to possess a residue of an illegal drug?

The respective proposed legislation for updating Virginia drug possession law to make personal use possession of schedule 1 and 2 drugs a misdemeanor (rather than a felony) and to no longer make it a crime to possess a residue of an illegal drug, is at SB 411 and HB 612. If you want this legislation passed, please contact your Virginia delegate and senator, whom you can find here.

Fairfax criminal lawyer Jon Katz pursues your best defense against Virginia DUI, felony and misdemeanor prosecutions. Call 703-383-1100 for a free in-person confidential consultation with Jonathan Katz about your court-pending case.