Where are felony drugs prohibited in the Virginia Code? 

In Virginia, the possession of illegal drugs is very serious. Specifically, Virginia Code Section 18.2-250 makes it a felony to possess many types of drugs: 

A.    It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act (§ 54.1-3400 et seq.)…

 …(a) Any person who violates this section with respect to any controlled substance classified in Schedule I or II of the Drug Control Act shall be guilty of a Class 5 felony, except that any person other than an inmate of a penal institution as defined in § 53.1-1 or in the custody of an employ style="margin-left: 40px"ee thereof who violates this section with respect to a cannabimimetic agent is guilty of a Class 1 misdemeanor…

What drugs are considered Schedule I or II under the Drug Control Act?

The Virginia Code lays out which specific drugs are Schedule I (click here) and Schedule II (click here). A quick review of those schedules demonstrates that the lists are long and thorough. However, drugs commonly known include Heroin, Ecstasy, LSD, Crystal Meth, Cocaine, PCP, and Ritalin). Therefore, if you are found to possess these drugs, you will indeed be charged with a felony.What should you know if you are charged with posession of drugs in Virginia?

How is “possession” proved?

Keep in mind, just because you are charged with possession of drugs doesn’t mean that you will be convicted. One issue that comes up often is whether it can be proved that you “possessed” the drugs. One hypothetical that comes up quite often is an accused is driving and pulled over by law enforcement for a traffic infraction. During the interaction with law enforcement, however, illegal drugs are found in the car. And the accused denies knowing anything about them. Is he guilty? The answer is: it depends!

Section 18.2-250 states plainly:

Upon the prosecution of a person for a violation of this section, ownership or occupancy of premises or vehicle upon or in which a controlled substance was found shall not create a presumption that such person either knowingly or intentionally possessed such controlled substance.

Given this language, it’s clear that just because the accused was in a car where drugs were found doesn’t mean that he’s guilty of possession. Instead, the court looks to evidence to prove he possessed it. Specifically, it must be proved that the accused was aware of “the presence and character of the controlled substance.”  

Exactly how they prove knowledge of “presence and character” depends on the facts of each case. And believe me, this issue has been litigated time and time again (and will continue to be litigated.) But some of the common facts a court looks for is: 

1) Did the accused admit to knowing about the drugs?
2) The location of the drugs in proximity to the accused.
3) Were there other individuals in close proximity?
4) Actions taken by the accused to demonstrate a guilty conscious?
5) The nature of the drugs found, ie was there so much that it couldn’t be missed or was it just a small amount that could have easily gone unnoticed?  

Keep in mind; this is not an exhaustive list. It’s also important to note that judges are human beings too. So one judge may find accused possessed drugs where another wouldn’t. So if you’re charged, this is an issue your attorney will need to consider thoroughly.  

What about the Constitution?

Because drugs are often found during law enforcement searches and as a result of interrogations, another issue that needs to be considered in any drug case is whether law enforcement violated the US Constitution. Specifically, the 4th Amendment protects you from unlawful searches and seizures, and the 5th Amendment gives you the right to remain silent, and the 6th Amendment affords you the right to counsel. Often during law enforcement interaction with the public, which leads to the discovery of drugs, law enforcement may (accidentally or intentionally) violate a suspect’s Constitutional rights. Therefore, it’s an issue that certainly must be reviewed by your attorney if you are charged with possessing illegal drugs. 

How does the government prove the drug was Schedule I or II?

Just because an accused is found with a baggie with white powder in it doesn’t mean he possessed cocaine. After, it could have been sugar, salt, or anything else that else that looks like white powder. Therefore, a court cannot simply rely on the appearance of a substance to convict someone of a drug crime.

Instead, the suspected drugs are either field tests or sent off to a lab (or both) to prove them to be illegal. Both tests require specific procedure steps that must be taken and ultimately proved by live-court testimony. Therefore, your attorney must also review the analysis of the substance you are charged with in determining how to defend your case.

What is a “deferred finding,” and who is eligible? 

While Virginia is quite harsh on possession of Schedule I or II drugs, it does offer an avenue to avoid a conviction (short of winning at trial). Specifically, Virginia Code Section 18.2-251 provides: 

Whenever any person who has not previously been convicted of any offense under this article or under any statute of the United States or of any state relating to narcotic drugs, marijuana, or stimulant, depressant, or hallucinogenic drugs, or has not previously had a proceeding against him for violation of such an offense dismissed as provided in this section, pleads guilty to or enters a plea of not guilty to possession of a controlled substance under § 18.2-250 or to possession of marijuana under § 18.2-250.1, the court, upon such plea if the facts found by the court would justify a finding of guilt, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him on probation upon terms and conditions.

This provision constitutes what is commonly referred to as a “deferred finding.” In simple terms, if you plead guilty (or even in some instances when you plead not guilty) to a drug crime, upon finding enough facts to convict you, instead of doing so, the court will continue the case out for a period. If at the end of that time, you complete required conditions, the charge will be dismissed against you.

To be eligible, however, you must have never been convicted of a drug crime or had a prior deferred finding. And to earn the dismissal, there are a lot of conditions that the court will impose upon you, to include avoiding further violations of law, a license suspension, active probation, regular drug testing and education, community service, and other conditions the court sees fit. So earning a dismissal isn’t a done deal just by agreeing to it. In fact, we’ve had many people fail to earn the dismissal.

What are the downsides of a deferred finding?  

A deferred finding can be a great outcome. In cases where the accused is clearly going to lose at trial, it provides an avenue to avoid a felony conviction. However, anyone accepting a deferred finding needs to realize that it may certainly have its downsides:

1) Your charge is not expungable.
While you may avoid a conviction, Virginia Expungement laws prevent a deferred finding from being expunged. Therefore, your charge will always be on your record.

2) It’s not a guaranteed dismissal.
Some people will not be able to abide by the court’s orders. And they will be convicted for doing so. If you agree to a deferred finding, you better be ready to meet the requirements. Or expect to be convicted.

3) If you’re innocent, it’s not fair.
Look our justice system is flawed. If you are innocent of the charge, you may very well not want a deferred finding. But before you make the decision one way or another, you and your attorney must weight the risks of turning down a deferred finding if it’s offered.

4) If you’re a non-US-citizen, a deferred finding may be treated as a conviction for immigration purposes.
We want to be clear: BenGlassLaw does not do immigration law. It’s a complex specialty that is forever evolving. If you’re charged with an offense and are not a US Citizen, we will require you to enlist the help of an immigration attorney for immigration advice. However, we are aware that deferred findings can be treated as convictions under immigration law. If you’re charged with a drug offense and aren’t a US citizen, you will need to explore this issue before deciding as to a deferred finding.


If you’re charged with Possession of a Schedule I or II Drug, and you’ve read this far, you know that it’s a complicated charge. The above information is not an exhaustive list of issues that need to be considered. Therefore, it’s important that you speak to a drug crime attorney immediately.

James S. Abrenio
Connect with me
Focusing on criminal, traffic defense and personal injury cases