Can You Be Charged with Possession if the Drugs Weren’t Yours?
Facing Possession Charges in Prince William County or Northern Virginia?
It’s a scenario many people never expect: drugs are found in your car, your home, or even your bag, but they aren’t yours. You might think that means you can’t be charged. Unfortunately, under Virginia law, that isn’t always true.
Even if you didn’t own or physically possess an unlawful substance, prosecutors can still charge you under the theory of constructive possession, arguing that you had knowledge of and control over the area where the drugs were found.
What Does Possession Mean in Virginia?
Under Virginia Code § 18.2-250, it’s illegal to knowingly or intentionally possess a controlled substance without a valid prescription. Possession can take two forms:
Actual possession: The substance is physically on you, like in your hand, pocket, or purse.
Constructive possession: You don’t physically have it, but you know where it is and have the ability to control it.
For example, if drugs are found in a shared car, bedroom, or apartment, police may argue that you had knowledge of them and access to the space where they were located.
Constructive Possession in Practice
Constructive possession often relies on circumstantial evidence, meaning prosecutors must rely on inference rather than direct proof. They might point to:
Where the drugs were found relative to your belongings
Whether you had a key or access to the space
Statements you made during the investigation
The behavior of others in the vehicle or home
However, mere proximity is not enough to prove guilt. Virginia courts have overturned convictions where the evidence failed to show the defendant knew the drugs were there or had control over them. The prosecution must prove both knowledge and intent to control, beyond a reasonable doubt.
Other Items You Can Be Charged with Possessing
Drug possession isn’t the only offense that falls under Virginia’s possession laws. Several other statutes make it illegal to knowingly possess certain items or substances, even if you don’t physically have them on you. Some common examples include:
Controlled substances – Under Virginia Code § 18.2-250, it’s illegal to knowingly possess drugs or controlled substances without a valid prescription.
Firearms or ammunition – § 18.2-308.2 makes it a felony for anyone convicted of a felony or otherwise prohibited by law to possess a firearm or ammunition.
Firearms while possessing drugs – Under § 18.2-308.4, possessing a firearm while unlawfully possessing a Schedule I or II controlled substance is a separate felony with mandatory minimum penalties.
Firearms after a domestic assault conviction – § 18.2-308.1:8 prohibits firearm possession for individuals convicted of assault and battery of a family or household member for a designated period.
Possession of a firearm by a convicted felon – § 18.2-308.2 makes it a Class 6 felony for anyone convicted of a felony (or otherwise prohibited) to knowingly possess or transport a firearm, ammunition, or similar weapon. The statute also includes mandatory minimum sentences: five years for a prior violent felony, or two years for another felony conviction within ten years, served consecutively to any other sentence.
Alcohol possession by minors – § 4.1-305 makes it unlawful for anyone under 21 to purchase, possess, or consume alcohol.
Each of these offenses carries its own potential penalties and long-term consequences. Like drug possession, many of these charges hinge on knowledge and control, meaning ownership isn’t required for prosecutors to build a case.
Class 4 misdemeanor up to $250
Additional consequences can include loss of driver’s license, probation, or a permanent criminal record that impacts employment and housing.
If you were also found with a firearm while possessing a Schedule I or II drug, § 18.2-308.4 imposes a mandatory minimum of two years in prison, even for first-time offenders.
Penalties for Drug Possession in Virginia
Under Virginia Code § 18.2-250:
Schedule I or II: Class 5 felony (punishment range up to 1–10 years; court may also fix a jail term not exceeding 12 months and/or up to $2,500 fine). Virginia Law
Schedule III: Class 1 misdemeanor (up to 12 months; up to $2,500 fine). Virginia Law
Schedule IV: Class 2 misdemeanor (up to 6 months; up to $1,000 fine). Virginia Law
Schedule V: Class 3 misdemeanor (fine up to $500). Virginia Law
Schedule VI: Class 4 misdemeanor (fine up to $250). Virginia Law
Related firearm enhancement: If a person unlawfully possesses a Schedule I or II substance and simultaneously possesses a firearm on or about the person, that separate offense is a Class 6 felony with a mandatory minimum of two years, to be served consecutively. Virginia Law
Felon-in-possession note: Possessing or transporting a firearm as a convicted felon is a Class 6 felony. If the prior felony was violent, the statute imposes a five-year mandatory minimum; for another felony within 10 years, a two-year mandatory minimum—both consecutive to any other sentence.
How to Defend Against Possession Charges
A strong defense often focuses on disproving one of the key elements of possession:
You did not know the substance was present.
You did not have control or access to the area where it was found.
The evidence is circumstantial or unreliable.
The search or seizure violated your constitutional rights under the Fourth Amendment.
Battlefield Law Group, located in Prince William County, has decades of experience defending possession cases across surrounding Northern Virginia courts. We challenge weak evidence, expose inconsistencies, and fight to protect your record and your future. Give us a Call!
Disclaimer
The information in this article is for general educational purposes only and reflects Virginia law as of the date of publication. Statutes and penalties can change through legislative updates or court decisions. This post is not legal advice and does not create an attorney-client relationship. For guidance on your specific situation, contact a qualified criminal defense attorney.
