From misdemeanor marijuana possession to distribution or manufacture of schedule I/II controlled substances, drug crimes are serious offenses that can negatively affect your future. Marijuana laws in the Commonwealth are changing but decriminalization may not stop you from getting pulled over by the police and searched. And while the legislature may have decriminalized possession of smaller amounts of marijuana, it does not take much to go from “personal use” to a felony possession with intent to distribute (PWID) charge. Even if you are not making money from selling marijuana or a controlled substance, through conspiracy or attempt, the police can still charge you with a distribution. There are also crimes related to illegal prescriptions or possessing drug paraphernalia that can put your future at risk. Our PWID Defense Lawyers at Invictus have decades of experience fighting drug possession and distribution charges in state, federal and military courts.
Statements Made to the Police
One most common issues in drug distribution cases is understanding your right to remain silent and how your own words can be important evidence used against you by the Prosecutor. Understanding how important it is to not make any statements to the police is critical. Police will try to convince you this is your opportunity to tell them your side of the story but what they are really doing is using your own words against you. When you waive your rights and speak to the police, you are providing them with evidence, sometimes KEY facts, that they have been searching for to build their case. You have the RIGHT to remain silent and you should do so.
Search and Seizure of Evidence
Another important aspect in your criminal drug case is how the evidence in your case was seized by law enforcement. It is vital to determine if the investigators had the right to search you or your property in your case. Police officers will often attempt to persuade you to waive your rights and allow them to search you or your property. The most common threat made by the police is that they are going to get a search warrant. Regardless of this threat, do not consent to any search without a search warrant. Another common tactic the police use is where they threaten arrest unless you allow them to search your property. Again, you should let them arrest you because it is likely they will not have enough evidence at this point and it is a violation of your rights to make an arrest which will result in discovered items being suppressed.
The laws surrounding the drug code are extensive and require expertise to see how they are interwoven to build a drug case. Some of the important terms used in this area of the law are listed below to help you understand your case.
Drug Terms
Controlled Substance – Each drug is classified in a schedule according to United States Department of Justice Drug Enforce Administration guidelines. This can determine the level of a penalty received in the state court or the federal court. Penalties are not always the same in state and federal court.
Personal Use – Whether a drug is intended to be used by the person who possesses it or to be distributed to someone else is the determination of personal use. There are several factors the court takes into consideration that may change your case from simple possession as discussed below or possession with intent to distribute, also discussed below. Some of these factors include the amount, unusually large amounts of cash, how the drugs are packaged, statements by the accused such as “I smoke sometimes with my friends,” and whether drug use paraphernalia is present.
Paraphernalia – Any items or accessories that are associated with a particular activity. Paraphernalia can sometimes point law enforcement in their determination of whether the drugs in question are for personal use or distribution. Things that indicate personal use tend to be smoking devices, rolling papers, bong, pipes, needles, spoons and residue on those items. Items that may indicate distribution are scales, razor blades, cutting agents, vacuum sealers, and packaging materials.
Common Nuisance – A charge that commonly surprises defendants is Keeping a Common Nuisance. This is a class one misdemeanor, but a second offense can be charged as a class 6 felony. Keeping a common nuisance is a charge that can be brought when the police allege a residence is used for the purpose of possessing or distributing marijuana or a controlled substance OR is even frequented by people who are under the influence of those substances.
Possession (actual v. constructive) – Actual possession of a drug is when it is physically possessed by you as in your hands or when found directly on your person such as in your pocket. However, when police find drugs in close proximity to you (but not actually on your person) they may attempt to charge you with constructive possession. If the police have found a drug but it is not on your person, they must prove you constructively possessed it, which means you were in “dominion and control” over the drug and you knew at the time that it was an illegal drug. This commonly occurs when drugs are found in a vehicle.
Distribution or Possess with Intent to Distribute – Possess with the Intent to Distribute charged when a person found in possession of a controlled substance or marijuana and it is believed that their intention is to either sell them or give them to someone else. Distribution is when there is actual evidence that the drugs have been given to another, whether or not for monetary exchange.
This is a very brief overview of the most common drug case issues and terminology. It is critical to understand that the is a very large and complex area of Virginia Criminal Law. It is necessary to obtain a lawyer who has years of experience and knowledge about drug possession and distribution in order to make sure you can get the best result possible in your case. Prosecutor’s approach these cases very seriously and are working hard to convict individuals of drug offenses. Having an experienced, aggressive attorney can mean the difference between a lengthy jail sentence or an acquittal.
