In Virginia, drug crimes are considered serious and are pursued very strictly by law enforcement and the judicial system alike. If someone has been charged with a drug-related offense, it is possible for them to appeal the charge in a Virginia court. To learn more about what’s involved in appealing a drug charge conviction in Virginia, call and speak with an experienced local attorney who can give you valuable insight into the drug appeals process.
In Virginia, drug crimes are generally broken down into a few categories. A defendant could be charged with possession, possession with intent to distribute with sale, distribution, or manufacture of drugs or controlled substances. The way that the offense is charged depends on a lot of factors, but it’s worth noting that while marijuana is classified as a class 1 controlled substance under The Drug Control Act, which plays a big role in how Virginia drug crimes are charged and punished, it is treated differently under the Virginia Code, so that simple possession is just a misdemeanor rather than a felony. The difference in whether a defendant may be charged with possession, which may carry a less strict penalty – or possession with intent to distribute for example, will depend on a lot of factors such as the amount of drug that is recovered, statements made to the police, packaging, and a number of factors that can make a very big difference in the severity of a charge.
There is a web of issues in drug crimes that encompasses pretty much all areas of criminal law, and a drug appeal can spring from any number of these issues or any combination of them depending on how they arise; among these are the issues of intent and possession. This is why it is important to have a Virginia appellate attorney who is familiar with all of these issues and well versed in the law surrounding them, as they are also aware of which arguments will likely be more successful.
The first issue regarding a drug appeal in Virginia is criminal intent. The difference in what may be charged can vary greatly depending on the intent that a defendant allegedly has. If a defendant simply possesses a drug, then the punishment will be less severe than if he or she is convicted of possessing it with the intent to distribute. Intent cannot be inferred by mere possession alone.
A lot of the time the way intent will be proven by the Commonwealth is through statements that are made, during custodial interrogations, to police officers and these statements have to be analyzed in the context of the defendant’s Fifth Amendment rights against self-incrimination, whether he is properly informed of those rights, and Fifth and Sixth Amendment rights to counsel as well. So, all of those things will come into play when determining whether evidence relating to a defendant’s intent can be introduced at trial. If the evidence was improperly introduced, then this can be a successful area for appeal.
The next Virginia appeals issue concerns the weight or packaging of a drug. For example, weight or packaging of a drug may be probative of an intent to distribute. However, that alone is not dispositive of whether a defendant had the intent to distribute. Intent is an element of the crime, and must be proved by the Commonwealth beyond a reasonable doubt in order for a defendant to be convicted of possession with intent to distribute.
Drug possession is a very important issue when a defendant is appealing their drug case in Virginia. It may seem like a no-brainer, but the Commonwealth has to actually prove beyond a reasonable doubt that there was possession by the defendant in order for them to be convicted. Now, that doesn’t mean that the defendant has to have his or her hands on the drugs at the time of the arrest for him to be convicted. There’s what’s called “constructive possession”, involving dominion and control over the drugs, but there must be showing of possession, either actual or constructive, beyond a reasonable doubt for a defendant to be convicted. If a judge gives an improper instruction of what constitutes possession or what constitutes constructive possession, this can be an area where an appeal can lie.
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