Will I Go to Jail for a Drug Possession Charge?

The state and federal penalties you could face in West Virginia

Federal and state laws classify certain chemical compounds as “controlled substances.” This includes many commonly used hallucinogens like marijuana and LSD, as well as much stronger opiates. In West Virginia, the state prohibits anyone from possessing a classified controlled substance without a “valid prescription” from a licensed medical provider.

First Offenses & Conditional Discharge

In some states you could face significantly higher penalties for possessing opiates than hallucinogens. West Virginia is relatively lenient in this sense. It treats all simple possession the same regardless of the type of drug. And many first-time offenders can avoid jail time altogether.
West Virginia law classifies possession of any amount of a controlled substance as a misdemeanor. If convicted, an offender faces between 90 days and six months in jail, as well as a fine of up to $1,000. However, state law also provides that if a person has no prior convictions for any drug crime anywhere in the U.S., he or she may seek a “conditional discharge” of their first offense.
A conditional discharge means that the defendant agrees to a term of probation prior to trial. If the defendant completes the probation without incident, the judge will dismiss the original possession charge. Six months after that, the defendant can ask the court to expunge the public record of the arrest itself, provided there have been no further violations during that time. Law enforcement will still retain a confidential record of the arrest, in order to ensure the person does not receive another conditional discharge in the future.

Subsequent Possession Offenses

If you have previously been convicted of a drug offense, West Virginia doubles the maximum sentence for any subsequent conviction. In other words, if you are convicted a second or third time for possession, you may be sentenced to one year in jail and ordered to pay a $2,000 fine. Keep in mind, West Virginia counts any prior drug conviction as a prior offense, even if it happened in another state.

Possession vs. Distribution

There is also a critical distinction between simple possession and “possession with intent to distribute or deliver.” The latter refers to cases where the prosecution believes that the drugs in the defendant’s possession were not for their exclusive personal use. These cases are tried as felonies, and conviction of possession with intent to distribute or deliver can lead to a prison term of up to 15 years in West Virginia.

State vs. Federal Law

Simple possession of a controlled substance is also a crime under federal law. A federal first offense for simple possession is a misdemeanor, like it is under West Virginia law, although the maximum jail term is one year rather than six months and there is no provision for a conditional discharge. The overwhelming majority of federal arrests for simple possession—more than 93 percent, according to statistics—are for marijuana, and occur primarily near the U.S.-Mexican border, not in West Virginia.
But the federal government also takes distribution of drugs far more seriously. And given how easy it is for prosecutors to elevate simple possession into an intent-to-distribute charge, it is important to contact an experienced West Virginia criminal defense attorney if you have been charged with any type of drug crime.

For more information on this area of law, see our overviews of criminal defense. and drug and alcohol violations.

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