Giving, distributing, or possessing with intent to give or distribute a controlled substance is a serious crime in Virginia, which may result in up to 40 years imprisonment and a fine of $500,000.00 per charge. Not all drug distributions are alike, however. Virginia law recognizes that a seller of drugs should not be treated the same as someone who, for instance, merely procures drugs for a friend. This is called an “accommodation.”
Because accommodation can result in a significantly lesser sentence, it is important that any person facing drug distribution charges be familiar with the doctrine. In this article, our experienced criminal defense lawyers outline the essentials.
Giving, Distributing, or Possessing With Intent to Give or Distribute Drugs Can Result in Severe Penalties
Virginia law criminalizes the giving, distributing, or possessing with intent to give or distribute a controlled substance; manufacturing and selling are also prohibited. For this article, we will refer to these charges as “distributing.”
What Is a Controlled Substance?
Controlled substances are defined in the Code of Virginia and classified into various schedules. Schedule I and II drugs include the most dangerous narcotics, such as methamphetamine, heroin, and psilocybin. Schedule III and IV drugs have less potential for abuse and include hydrocodone (III), valium (IV), and alprazolam, commonly known as Xanax (IV). Finally, the least serious substances are found on Schedules V and VI and include small amounts of codeine, an ingredient in cough syrup (V), as well as non-narcotics that can nevertheless be abused, such as paint thinner (VI).
The Penalties for a Drug Distribution Conviction Can Vary
The severity of a drug distribution conviction depends in large part on the classification of the substance. With respect to Schedule I or II, a convicted defendant will be imprisoned for not less than five nor more than 40 years and fined not more than $500,000.00. While some of this sentence may be suspended, meaning that the defendant does not actually serve all of the time upon conviction, there are two important exceptions.
First, on a third or subsequent offense, the imprisonment increases to between five years and a life sentence, five years of which is a mandatory term of imprisonment. Second, if the substance is a large amount, defined by the statute (for example, 100 grams or more of heroin), the imprisonment increases to between five years and a life sentence, five years of which is a mandatory term of imprisonment, and the fine increases potentially to $1,000,000.00.
Many defendants are charged with distributing multiple controlled substances at once. Depending on the unique circumstances of their case, they may be facing significant jail time and fines, even when the mandatory minimum provisions are not in effect.
Distributing a Schedule III or IV substance, on the other hand, is a Class 5 felony. This means a term of imprisonment between one and ten years, or confinement in jail for up to one year, as well as a fine of up to $2,500.00. Again, some of this sentence may be suspended, but there is generally no mandatory minimum sentence, unlike with distribution of Schedule I and II substances. There is one exception: under a separate statute, a conviction of distributing anabolic steroids, drugs under Schedule III, carries a mandatory term of imprisonment of six months.
Convictions for distributing a Schedule V or VI substance are the least severe. Distribution of a Schedule V substance is a Class 1 misdemeanor, meaning confinement in jail for up to 12 months and a fine of not more than $2,500.00. And while Virginia law does not expressly prohibit distribution of a Schedule VI substance, illicit possession of such a substance constitutes a Class 4 misdemeanor, meaning a fine of not more than $250.
Accommodation May Result in Lesser Sentence
While distribution of a controlled substance, particularly those under Schedule I and II, are serious crimes and subject to severe punishment, it is possible to reduce the severity of a drug charge under the “accommodation” doctrine. If a person proves that they distributed a controlled substance classified in Schedule I or II only as an accommodation to another individual, and not with intent to profit nor to induce the recipient or intended recipient of the controlled substance to use or become addicted to or dependent upon it, then that person is only guilty of a Class 5 Felony. If a person is able to prove accommodation with respect to a Schedule III or IV substance (aside from anabolic steroids), then that person is only guilty of a Class 1 misdemeanor.
When Can a Charge Be Reduced to Accommodation?
The purpose of the accommodation doctrine is to mitigate punishment when one convicted of distribution is found not to be a drug dealer, but simply an individual citizen motivated by a desire to accommodate a friend, without any intent to profit or to induce or to encourage the use of drugs.
For instance, in the case of McCoy v. Commonwealth, the Court of Appeals of Virginia held that a person may be entitled to accommodation if they purchase drugs for a friend to resell, provided that they had no intent to share in the sale proceeds and did not participate in the sale transaction except to arrange it.
The use of the word “profit” in the statute, however, is somewhat misleading. Courts in Virginia have interpreted “profit” not just to mean a literal profit, i.e., a net gain of money, but rather anything stemming from a commercial transaction. Thus, even if a person sells drugs to a buyer at a price less than the amount the seller paid for the drugs, the seller may not necessarily be able to raise accommodation as a defense.
Likewise, “profit” need not be monetary. In one case, Walker v. Commonwealth, the court found that the defendant intended to “profit” (and was thus unable to rely on the accommodation defense) because he hoped to smoke some of the cocaine he purchased, thus sharing in the drugs.
Additionally, there is a rebuttable presumption that drugs were distributed with an intent to profit; the defendant must be able to rebut that presumption with more than a “scintilla” of evidence. In other words, it is the defendant’s burden to prove accommodation by a preponderance of the evidence. However, accommodation is ultimately an issue to be resolved by the jury.
What Are the Effects of Accommodation?
If a person proves accommodation for distributing a Schedule I or II substance, they are only guilty of a Class 5 felony. As noted above, a Class 5 felony can be punished by a term of imprisonment between one and ten years, or confinement in jail for up to one year, as well as a fine up to $2,500.00. By contrast, a defendant convicted of ordinary distribution can be punished by a term of imprisonment between 5 and 40 years, and fined up to $500,000.00. Clearly, the potential punishment for an accommodation distribution of a Schedule I or II substance is far less severe.
Similarly, if a person proves accommodation for distributing a Schedule III or IV substance (aside from anabolic steroids), they are only guilty of a Class 1 misdemeanor, as opposed to a Class 5 felony. Thus, the difference between ordinary distribution of a Schedule III or IV substance (aside from anabolic steroids) and accommodation distribution of a Schedule III or IV substance (aside from anabolic steroids) is between one to ten years versus, at an absolute maximum, one year.
Furthermore, accommodation has a profound effect on the sentencing guidelines, which are what courts in Virginia use to determine the actual sentence to be imposed on a particular defendant. Virginia’s guidelines use what is essentially a point system; the more points a defendant has, the longer term of imprisonment will be imposed.
For example, a defendant convicted of distribution of a Schedule I or II substance will have, initially, 12 points. This means that, regardless of other factors, the guidelines will recommend a sentence of at least one year.
On the other hand, a defendant convicted of distribution of a Schedule I or II substance as an accommodation will start with only five points. Depending on other factors, such as concurrent charges or prior convictions, this may result in the guidelines recommending a period of no incarceration. In any event, all else being equal, the guidelines will always recommend a significantly lesser sentence for a defendant convicted of distribution of a Schedule I or II substance as an accommodation.
Most importantly, all of the above means that, if a defendant can legitimately argue accommodation, they will be in a far better negotiating position with the Commonwealth’s Attorney prosecuting their case. It is important for anyone facing a charge of distributing a controlled substance to have counsel familiar with accommodation and ready to argue it on behalf of their client.
Fishwick & Associates: Fighting for Defendants Accused of Drug Offenses
If you have been accused of a drug offense in Virginia, Fishwick & Associates can help you understand your legal options. To schedule your free and confidential consultation, complete our online contact form or call us at 540.345.5890.
Virginia Code § 18.2-248.
Virginia Code § 54.1-3443 et seq.
Virginia Code § 18.2-10.
Virginia Code § 182.-248.5.
Virginia Code § 18.2-11.
Stillwell v. Commonwealth, 219 Va. 214, 247 S.E.2d 360 (1978).
McCoy v. Commonwealth, 9 Va. App. 227, 385 S.E.2d 628 (1989).
Walker v. Commonwealth, No. 2974-01-4, 2003 Va. App. LEXIS 110 (Ct. App. Mar. 4, 2003).
Winston v. Commonwealth, 16 Va. App. 901, 434 S.E.2d 4 (1993).
Porter v. Commonwealth, 66 Va. App. 302, 785 S.E.2d 224 (2016).
Brown v. Commonwealth, 215 Va. 753, 213 S.E.2d 764 (1975).
Virginia Sentencing Guidelines (http://www.vcsc.virginia.gov/index.htm)
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