There is more than one type of possession. The first is what is sometimes called simple possession. This involves an individual being aware of the presence and character of an illegal substance and intentionally and consciously possessing it.
This can happen when drugs are found in a person’s clothing or anything intimately associated with their body such as a purse, a wallet, or even a small container in their pocket. The seriousness of the possession charge is determined by numerous factors including the type of drug and the quantity of drugs. So for example, possession of a small quantity of marijuana is a Class 1 misdemeanor in Virginia, whereas possessing a similar quantity of harder drugs such as the following are felonies:
A second type of simple possession is sometimes called constructive possession. Constructive possession means that the person is charged with possessing drugs that were not found immediately on their person, but rather were found on their vehicle or sometimes their home or even a boat. In such a case, the Commonwealth has to prove that the defendant was aware of both the presence and the character of the substance and that it was subject to his dominion or control.
For example, if a bag of crack cocaine is sitting on the passenger seat of a vehicle in plain view, this will often amount to constructive possession because the drugs were both within reach and it can reasonably be inferred that the defendant probably knew they were there and what they were because they were sitting in the open. However, change the facts just a little to where the drugs are in a closed console and while they may be within reach, it will be much more difficult to prove that the defendant knew both that they were there and what they were. In Virginia, merely being owner of a vehicle or a resident does not create a presumption that the person is aware of or possesses their contents.
Next there is possession with intent to distribute. Possession with intent to distribute is a felony in Virginia, a far more serious charge. It involves possessing an illegal drug in a large enough quantity to allow the inference of the intent to distribute it.
However, for defendant to be convicted of possession of a controlled substance with the intent to distribute, the Commonwealth must prove that the defendant possessed the controlled substance simultaneous with his or her intention to distribute that substance.
For example, if a defendant is caught with scales, cutting agents, baggies, and all the other implements necessary to carry out distribution, unless there’s a sufficient quantity of drugs present to allow the conclusion that there is an intent to distribute, the charge will not stand. Most cases of possession with intent to distribute involve the presence of more than just a recreational amount of drug, and often that’s coupled with other items which tend to show an intent to distribute. But quantity alone can be enough to establish the elements of that offense if it is great enough.
The final two common drug offenses are sale and manufacturing. These are also felonies which are treated identically to possession with the intent to distribute. Sale involves the exchange of money or other things of value for illegal drugs, and sometimes evidence of the sale can come from a sting, from surveillance, or a witness to a sale, but in other cases sale is proved from circumstantial evidence such as the presence of cash or a ledger book.
Manufacturing involves creation of the drugs itself and often that involves a drug lab scenario, growing field, or hot house.
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