In Virginia, it is illegal to possess certain controlled substances. Other drugs you can possess lawfully and without any recourse from the government if they find you with them. In some instances though, an otherwise illegal drug to possess is lawful to possess so long as the one possessing it holds a current prescription for the drug. For instance, it is illegal to possess controlled substances deemed “addictive” such as adderall, oxycodone, xanax, etc.  unless you have a prescription. Today’s blog post deals with what constitutes “possession of drugs.”

Actual or Constructive Possession of Drugs

Courts in Virginia and in other states discuss possession being either “actual” or “constructive.” Actual possession is just that – actual.

In the legal world, courts have defined it as proof that the accused was aware of the presence and character of the particular substance and that there was intentional and conscious possession, i.e. physical control. The difference between actual and constructive possession is the difference between the existence of manual control over an object and the right and/or power to exercise control over objects at some distance from the person.

As one could probably gather, defense attorneys like constructive possession cases more because they are harder for the prosecution to prove. Just because a defendant is near drugs does not mean that there is proof that the defendant was aware of the presence and character of the substance found. Obviously, that argument is harder to make if the drugs are found in the defendant’s pocket.

The point is this – mere proximity to controlled substances, or a defendant’s presence in a house which contains such substances, will not establish possession. Nor does ownership or occupancy of premises raise a presumption of possession. Recent cases in Virginia support this premise. In February 2020, the Virginia Court of Appeals decided Yerling, s/k/a Yearling v. Commonwealth (1705-18-1, February 18, 2020).

Yerling S/K/A Yearling v Commonwealth of Virginia

Long and short, Yerling/Yearling gets pulled over for speeding. The apprehending officer smells pot and winds up searching the vehicle. In a closed console, he finds a single pill in a balled-up piece of paper. The Defendant does not say anything about the pill and makes no movements related to it. The pill comes back from analysis as Oxycodone, a Schedule II controlled substance. He gets charged with a violation of Section 18.2-250, felony possession. Convicted by the trial court, he appeals on the grounds that there was insufficient evidence to demonstrate that he knowingly possessed the pill and was aware of its nature. The Virginia Court of Appeals agreed with him, reversed the conviction and dismissed the charge.

It’s a good opinion for everyone to read. It reminds us of several basic tenants in drug possession cases.

1. The Commonwealth must prove that the accused was aware of both the presence and character of the drug and consciously possessed it. That a defendant is close to drugs or owns the vehicle or premises wherein drugs were found, creates no presumption that she is the owner of those drugs. Instead, it is just a factor that can be considered.
2. The Commonwealth must also establish that an accused intentionally and consciously possessed the drug with knowledge of its nature and character.

In this case, the Court of Appeals held there just was not enough to link the accused to the pill in question. There was no evidence that the vehicle was actually his, the pill was found in a closed console, and the accused made no statements that he had any knowledge that he was aware of the pill’s presence or character.

Need Representation? Get in Touch.

Remember: you have the right to remain silent, and if you think you might be charged with illegal possession of drugs in Virginia, please exercise that right. If you need representation to fight this charge, please get in touch by filling out our online form. 

Gilliam & Mikula is centrally located in Richmond, Virginia, and serves clients throughout the Commonwealth of Virginia. Our attorneys have over forty years of combined experience in various practice areas, representing individuals and businesses. We are licensed to practice in all General District Courts and Circuit Courts of Central, Tidewater, and Northern Virginia including, but not limited to, Chesterfield, Richmond, Henrico, Hanover, Colonial Heights, Petersburg, Hopewell, Fredericksburg, Alexandria, Fairfax, Manassas, Virginia Beach, and their surrounding areas.

The attorneys at Gilliam & Mikula are here to smoothly guide you through the “legal maze” and ensure that you achieve the most favorable outcome.