The Two most common drug offenses in Virginia are:
(1) Possession of a Scheduled Substance - Each Different Schedule of Drug Carrying Different Potential Penalties if Convicted. Virginia Code Section 18.2-250.
The Potential Penalties one could face if convicted are determined by the schedule of the substance involved:
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. VA Code Section 18.2-250(a).
Schedule III shall be guilty of a Class 1 misdemeanor. VA Code Section 18.2-250(b).
Schedule IV shall be punishable as a Class 2 misdemeanor. VA Code Section 18.2-250(b1).
Schedule V shall be punishable as a Class 3 misdemeanor. VA Code Section 18.2-250(b2).
Schedule VI shall be punishable as a Class 4 misdemeanor. VA Code Section 18.2-250(c).
(2) Possession of Marijuana.Virginia Code Section 18.2-250.1
Possession of Marijuana the first time you are convicted is an unclassified misdemeanor. Meaning you must look to the code section to find the possible penalties one could face if convicted.
For Marijuana a first conviction carries the possibility of up to 30 days in jail and a fine of not more than $500. A Second conviction however is elevated to a class 1 misdemeanor, meaning it carries the possibility of up to 12 months in jail and a $2,500 fine.
First offender is a statutorily provided program in Virginia that allows someone charged with possession of an illegal drug for the first time the opportunity to get that charged dismissed. Virginia Code Section 18.2-251.
In order to do this the statute requires that person to successfully complete a number of tasks. These tasks include:
A number of hours of community service (24 for a misdemeanor and 100 for a felony drug possession charge); and
Complete a substance abuse evaluation; and
Comply with the recommendation of the substance abuse evaluation; and
Successfully complete and pass a number of random drug screens; and
Abide by a 6 month license suspension, for which a restricted license can be requested.
Additionally, the person charged must remain of good behavior for a term of a year, meaning they cannot get any new criminal charges after entering into the program.
After You Enter Into The First Offender Program, What Happens?
When you enter into the program a review date will be set where you must return to the court for the judge to determine if you have successfully completed the program with no violations.
If you have, then the charge will be dismissed. If you have not, then you can at that point be immediately convicted and sentenced to the underlying drug charge without the benefit of a trial.
Because of this it is important to carefully discuss the program and all of your options with your lawyer before entering into the first offender program.
Negative Side Effects to The First Offender Program the Court Will NOT Tell You About
You Can Never Get It Expunged
It is important to note that if you do enter into the program and the charge against you is ultimately dismissed, YOU WILL NEVER BE ABLE TO GET THAT CHARGE EXPUNGED from your record. What does that mean?
Well, it means that your record will always show that on X date, in X county, you were charged with possession of a scheduled substance, and that on X date, in X county, it was dismissed through successful completion of the first offender program. There is no way to this erased from your record.
If You Are Not a Citizen DON'T DO IT!
If you are NOT A CITIZEN YOU SHOULD NEVER ENTER INTO THIS PROGRAM without the assistance of a lawyer who is also experienced in immigration law.
Even if your charge is dismissed, the way in which you procedurally entered into the program, a guilty plea, a nolo contendere plea, a not guilty plea with a stipulation to the evidence, will ALL BE CONSIDERED A CONVICTION by immigration court, even if you successfully complete the program and the charge is ultimately dismissed by the state court.