If the prosecutor has charged you with any crime relating to Schedule V drugs, you might be wondering what Schedule V means. Federal and Virginia laws classify regulated substances into a scheduling hierarchy or system depending on their possibility of abuse and dependency, medical uses, and addictive properties. Drugs with a high potential for addiction and which have no medicinal value, such as LSD, are classified as Schedule I. On the other hand, less addictive drugs like pholcodine are categorized under Schedule V.

Even though Schedule V drugs have a lower potential for abuse and have a higher medicinal value, charges related to them may still carry heavier consequences. However, an experienced drug crimes lawyer can help you avoid these penalties. At Virginia Criminal Attorney, we will work with you to have the prosecution dismiss your case. If that is impossible, we can strive to have the judge impose lenient penalties. Do not hesitate to call us for help if charged in Northern Virginia and Fairfax.

Schedule V Drugs Overview

Va. Code 54.1-3453 lists the requirements for categorizing a regulated substance as Schedule V. Per this law, the board classifies a drug as Schedule V when the substance:

  • Has a possibility for abuse less than that classified under Schedule IV
  • Has a presently accepted medicinal use in the U.S
  • May result in limited physical or mental addiction and dependency compared to the substances classified under Schedule IV

Va. Code 54.1-3454 lists controlled substances included under Schedule V. They are:

  1. Any preparation, mixture, or compound containing limited amounts of any of these narcotic drugs:
  • Not over 0.5 mg of difenoxin and not lower than 25 mcg of atropine sulfate per dosage unit
  • Not over 100 mg of opium per 100 ml or 100 g
  • Not over 2.5 mg of diphenoxylate and lower than 25 mcg of atropine sulfate per dosage unit
  • Not over 100 mg of ethylmorphine or any of its salts per 100 ml or 100 g
  • Not over 100 mg of dihydrocodeine or any of its salts per 100 ml or 100 g
  • Not over 200 mg of codeine or any of its salts per 100 ml or 100 g

Apart from the above ingredients, the preparation, mixture, or compound must also contain:

  • One or several non-narcotic active medicinal ingredients in adequate proportions to confer upon the preparation, mixture, or compound and
  • Valuable medicinal qualities apart from those contained in the narcotic drug alone.

The Board might exclude by law any preparation, mixture, or compound containing any depressant substance listed above. The excluded substances might be dispensed per Va 54.1-3416.

  1. Unless specifically listed or excluded in other schedules, any preparation, mixture, compound, or material containing any amount of pyrovalerone, including its isomers, salts of isomers, and salts having a stimulant impact on the central nervous system.
  2. Unless particularly listed or excluded in other schedules, any preparation, mixture, compound, or material containing any amount of:
    • Vrivaracetam,
    • Ezogabine,
    • Gabapentin,
    • Ganaxolone,
    • Lacosamide,
    • Lasmiditan, or
    • Pregabalin, including its salts and one having a depressant impact on the central nervous system

Specific examples of Schedule V drugs per Va. Code 54.1-3454 include, without limitation:

  • Robitussin and similar cough medications with small quantities of codeine
  • Lyrica and similar pain medications
  • Tylenol
  • Motofen
  • Pholcodine
  • Other pharmaceutical medications, usually available with no prescription

Schedule V controlled substances have limited likelihood for psychological and physical dependency, accepted medicinal uses, or possibility for abuse.

Types of Schedule V Drug Charges

Schedule V drug charges under Virginia law include offenses involving the distribution, manufacture, or possession of these drugs. Lawmakers in Virginia have changed several of the controlled substance laws. However, a conviction can still carry severe consequences, including mandatory minimum prison terms.

Simple Possession of Schedule V Drugs

Per Va. Code 18.2-250, simple possession of a drug under Schedule V is a crime. The crime is deemed a Class 3 misdemeanor. It is punishable by a fine that does not exceed $500.

You do not have to be subject to the mentioned fine if it is your first arrest for unlawfully possessing a Schedule V drug. That is because you may qualify for a narcotics diversion program per Va. Code 18.2-251. If you complete the program and meet other conditions the court has imposed, the court will dismiss your charges.

If the trial has not ended, the court may defer your case until you complete the program and then dismiss it. If you fail to complete the program, the case will continue, and you will face the necessary consequences if you lose at trial. Some of the conditions the court may impose include:

  • Community service
  • Having a suspension or restriction placed on your driver's license
  • Undergoing drug abuse treatment
  • Agreeing to random alcohol and drug tests
  • Paying the costs of the program
  • Not to violate any other laws
  • Drug or alcohol abuse education
  • Other court-imposed conditions

Should you violate the conditions, like failing a narcotics test or being arrested for another offense, it can mean the judge will find you guilty and go on to sentencing. On the other hand, completing it will mean the court will dismiss your case with specific requirements.

Irrespective of whether the court dismisses your case or convicts you, you qualify to have your possession cases sealed per Va. Code 19.2-392.12 after ten years.

Prosecution for simple possession of Schedule V drugs does not apply to:

  • State, county, city, town, or federal police agencies,
  • Correctional officers, or
  • Jail officers who are certified dog handlers trained to detect regulated substances when possessing a drug is necessary while performing their duties.

Defending Against Schedule V Possession Charges

An experienced drug crimes lawyer can help you fight for your freedom if accused of Schedule V drug possession charges. Consult them about what defenses apply to your case. The lawyer will look at the evidence and facts of your case and determine the best course of action to fight the charges against you. They can use the evidence available to lower the seriousness of the consequences when possible. They can do this by:

  • Giving justification for possessing the drug, like a valid prescription
  • Giving reasonable doubt that the drug belongs to you (for example, if you share a space with your roommate)
  • Asserting that the police found the drug in your possession after conducting an illegal search and seizure
  • Challenging the identification of the drug as a Schedule V controlled substance
  • Arguing police misconduct
  • Contesting the quantity of the substance
  • Arguing you did not know you had the drug
  • Asserting you were not aware the substance you had was a controlled drug

Since the court needs evidence beyond a reasonable doubt to convict, an attorney will try to cast doubt. The burden lies on the D.A. to demonstrate all the elements making up the charges, including that possession was intentional and knowing. Per Virginia laws, ownership of an automobile or occupancy in an apartment or home where narcotics were found does not create a presumption that the individual possessed them. Your defense lawyer can capitalize on this to prove the prosecution has not demonstrated their case.

Possession Intending to Sell or Distribute

Va. Code 18.2-248 defines the crime of possession intending to sell, distribute, give, or manufacture a regulated substance or an “imitation” regulated substance, including Schedule V drugs. Possession with intention is a severe accusation that generally assumes the defendant participates in a larger narcotics economy. The accused even need not have sold the drug for a conviction to occur. Only the fact that they were planning to sell or distribute the drug suffices.

Some people may ask what differentiates a simple drug possession charge from possession with intent. Possession with intention is an offense that heavily depends on law enforcement intuition. Usually, there is no direct formula or chart for them to consult. They just scrutinize the situation and make assumptions regarding what they observe. Several factors can lead the police to infer possession with intention, not simple possession. They include:

  • A gun is present
  • A lot of money is present
  • The drug is in large quantity
  • The police do not believe you were using the narcotics in question
  • You have a previous possession with intention charge
  • Distribution and packaging materials, such as zip ties, baggies, scales, et cetera, are present.

The consequences for possession intending to sell or distribute Schedule V drugs are different from those of simple possession charges. That is because these offenses are deemed distinct and individual. You can be accused of both simple possession and possession intending to sell. However, the proximity or presence of a regulated substance is not necessary to be convicted of possession for sale.

Intending to sell a Schedule V drug is deemed a Class 1 misdemeanor. That said, it is generally punished more severely than simple possession, with the possibility of both fines and jail time. Prison terms might go up to 12 months, and the court fine might be as high as $2,500. Large-volume dealers who intend to sell, distribute, give, or manufacture Schedule V drugs can be subject to more severe penalties.

Defending Against Possession With Intent of Schedule V Drugs

As is evident, the evidence for possession with intention charges can be insubstantial. The police can make vast assumptions and use them against you. Therefore, you can successfully oppose their allegations with more substantial and verifiable evidence. Work with an attorney to establish your case facts, and you might beat the charges against you in court. Valid defenses your lawyer can raise to help your case include:

  • Illegal search and seizure
  • Issues with the chain of custody of the drug in question
  • Witness credibility issues
  • Evidentiary issues
  • And other issues

There might be more valid defenses applicable to your case. That is why you want to work with a drug crimes attorney who is experienced in handling these cases and understands how drug prosecutions and investigations go.

Selling or Distributing Schedule V Controlled Substances

Apart from possession with intent, Va. Code 18.2-248 also criminalizes the sale, manufacture, distribution, or giving of controlled substances, including Schedule V drugs, in the Commonwealth. The law also applies to selling, manufacturing, distributing, or giving of “imitation” regulated substances. The prosecution must demonstrate both distribution and possession of a drug to convict you of distributing or selling a regulated substance.

Possession: When showing possession, the prosecution must prove you intentionally and knowingly had the drug. That means you knew it was a regulated substance, knew its location, and had control and dominion over it.

Distribution: Va. code 54.1-3401 defines distribution as delivering other than via dispensing or administration. Virginia law interprets drug distribution extensively and covers virtually any transfer, gift, or sale involving regulated substances.

Regulated substance: The prosecution must also show the drug was indeed regulated, in this case, falling under Schedule V.

Manufacturing means producing, preparing, propagating, converting, or processing a drug either

  • Indirectly or directly by extracting from substances of natural origin,
  • Independently through chemical synthesis, or
  • Through a combination of chemical synthesis and extraction

Manufacturing also includes packaging or repackaging a drug or labeling or rebelling its container.

During the prosecution for distributing or manufacturing imitation regulated substances, relevant evidence of your intent to distribute or manufacture illegal narcotics can include the following:

  • The actual chemical composition of the narcotics in question
  • The amount of the drug involved
  • Whether there was an exchange of money for drugs
  • The drug’s price

The police will also attempt to utilize confidential informants, phone data, and other instruments to prove the drugs you had were meant for distribution.

Distributing a Schedule V drug is deemed a Class 1 misdemeanor, punishable by a court fine not exceeding $2,500 and up to a year in county jail.

Other charges that involve the sale and distribution of Schedule V controlled substances include:

Distributing a regulated substance in violation of the Drug Control Act. The Drug Control Act controls the dispensing and distribution of regulated drugs in Virginia. Distributing or selling drugs in violation of these regulations can be prosecuted as distribution of a regulated drug under Va. Code 18.2-248 or any other distribution law. Violating the Drug Control Act with no particular penalty outlined is deemed a Class 1 misdemeanor per Va. Code 18.2-260.

Distributing a regulated substance near or on certain property per Va. Code 18.2-255.2. This is a distinct and additional charge. It is a crime to distribute a Schedule V drug on:

  • Public property within 1,000 feet of school property
  • School property
  • At a school bus stop
  • A school bus
  • At a public library or recreational center
  • Public property open to public use within 1,000 feet of state facility
  • At a state facility

The above actions are prosecuted under Va. Code 18.2-255.2 in addition to any other drug charges. The consequences include a fine not exceeding $100,000 and one to five years in state prison.

Delivering a regulated drug to a prisoner. It is a Class 5 felony to deliver a regulated substance to a prisoner. The crime is punishable by a court fine not exceeding $2,500 and up to ten years in state prison.

Distribution without a valid prescription. Per Virginia law, it is deemed a Class 4 misdemeanor for a pharmacist to distribute a regulated substance with no valid prescription but receive the prescription within a week after filling it. Also, it is a Class 4 misdemeanor for a physician to permit a pharmacist to sell a regulated drug with no written prescription if they remit a legitimate prescription within a week of filling the prescription.

Defending Against Schedule V Sale or Distribution Charges

Every drug sale or distribution charge is unique. Thus, a lawyer will develop a defense strategy contingent on the case specifics. However, five defenses are prevalently used to fight Virginia drug sales or distribution charges. These are:

  • The narcotic was not in your possession
  • An unlawful search and seizure
  • You never had the intention to distribute
  • The police used entrapment
  • You did not know you had the drug
  • Issues with chain of custody
  • Illegal or improper arrest procedures
  • Disputes over the drug quantity

Crimes That Can Be Related to Schedule V Drug Charges

The following crimes are linked to drug charges in Virginia, including Schedule V drug crimes:

Conspiracy to Commit a Drug-Related Offense, Va. Code 18.2-256

If you conspire to commit any Schedule V drug-related crime or violate any section of the Drug Control Act, you will be charged with conspiracy. In this case, you will face the same maximum or minimum consequences for the crime you conspired to perpetrate.

Attempting to Perpetrate a Drug-Related Crime, Va. Code 18.2-257

Even though in Virginia State, attempting to commit a felony generally falls under Va. Code 18.2-26, attempting a narcotics-related crime falls under Va. Code 18.2-257. If you attempt to perpetrate a Schedule V drug-related offense, you will be subject to Class 2 misdemeanor charges. A conviction carries a maximum of six months in county jail and a fine not exceeding a thousand U.S. dollars. Or, you could be subject to the penalty of the crime you attempted to perpetrate if its penalty is lower and the court opts to impose it.

State Vs. Federal Schedule V Drug Charges Under Virginia Law

You can be charged with Schedule V drug-related charges both in state and federal court. The consequences and laws of being prosecuted for narcotics offenses vary in these two courts. However, with help from a criminal defense lawyer experienced in defending defendants in federal and state courts, you might successfully have the judge dismiss or reduce the charges against you.

Essential Differences Between State and Federal Schedule V Drug Charges

Under Virginia and federal laws, it is unlawful to possess, possess with intent, sell, manufacture, or distribute Schedule V drugs. However, federal charges often entail interstate illegal activities (when criminal activity happens in several states). You can also face federal charges if you committed the offense on federal property, like a national park.

Prevalent federal narcotics charges you may face relating to Schedule V include:

  • Possession: This offense is the conscious possession of a drug under Schedule V without a valid prescription.
  • Possession intending to distribute or sell: This offense is a type of drug trafficking you may be accused of when found with large quantities of Schedule V drugs that were not just for your use.
  • Manufacture: This offense entails making Schedule V drugs without authorization. Even purchasing equipment or ingredients to make the drugs can be considered manufacturing.
  • Trafficking and distribution: You could face accusations for this offense for providing, delivering, transporting, or selling a Schedule V drug
  • Conspiracy: You can face conspiracy charges for unlawful activities surrounding and supporting drug trafficking, like transporting drug money.

Federal investigations often involve large-scale criminal drug operations and focus on the transportation and trafficking of the most dangerous drugs like cocaine, heroin, LSD, and other Schedule I and II drugs. However, that does not mean you cannot face federal charges in Virginia for a crime involving Schedule V drugs. Just as illegal activities involving Schedule I-IV are prohibited under federal law, so are those involving Schedule V drugs.

Find a Skilled Drug Crimes Attorney Near Me

Even though Schedule V drugs are at the near bottom of the hierarchy, related charges can still have severe consequences. If facing any charges involving Schedule V drugs, you can expect the prosecution to prosecute you aggressively. You need help from an experienced drug crimes attorney to help you fight back by mounting a compelling defense strategy to avoid the resulting consequences.

At Virginia Criminal Attorney, we will immediately start working on your defense strategy. Also, we have in-depth experience negotiating with the prosecutors and the police in an attempt to have the charges against you dropped. If a case dismissal is impossible, we will fight so the prosecution can grant you a lenient sentence. For example, if it is your first possession charge, we will fight for a diversion program instead of a fine. If you have been charged in Northern Virginia or Fairfax, call us today at 703-718-5533 to set up a free consultation and learn how we can assist you.