Does a Virginia drug-manufacturing or drug-by-fraud felony conviction disqualify someone from food stamps?

Plain-English summary

In January 2012, Wythe County Commonwealth's Attorney Gerald Mabe asked the AG how the federal drug-felony food stamp ban applied to two Virginia drug crimes. The federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996, at 21 U.S.C. § 862a, says anyone convicted of a felony with "an element [of] the possession, use, or distribution of a controlled substance" loses certain federal public benefits, including food stamps (now SNAP). States can opt out by enacting their own law. Virginia did, but only partially.

The Virginia opt-out, Va. Code § 63.2-505.2, exempts only convictions for simple possession under § 18.2-250. The AG concluded everything else stays in the federal ban's lane. The question was whether two specific Virginia felonies fit the federal language.

The first was § 18.2-248, which makes it unlawful to "manufacture, sell, give, distribute, or possess with intent to manufacture, sell, give or distribute a controlled substance." The AG concluded that manufacturing a drug is a violation of § 18.2-248, "a provision that by its terms includes possession among its elements." So a § 18.2-248 felony conviction falls within § 862a.

The second was § 18.2-258.1, which makes it a Class 6 felony to obtain or attempt to obtain drugs by fraud, deceit, misrepresentation, embezzlement, subterfuge, prescription forgery, concealment of a material fact, or false name. The AG read "obtain" as meaning "to gain possession of," so § 18.2-258.1 convictions also necessarily involve possession of a controlled substance.

Both felonies therefore triggered the federal food stamp bar, and because § 63.2-505.2 expressly singled out only § 18.2-250, the AG read that choice as the General Assembly having exempted only § 18.2-250 convictions.

The one caveat the AG flagged was conditional: the disqualification applies only if "the specific violation of either section constitutes a felony." The opinion did not catalog which subsections are or are not felonies.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The 1996 federal welfare reform law imposed a lifetime ban on federal cash assistance and food stamps for drug-felony convictions, codified at 21 U.S.C. § 862a. § 862a(a) imposes the ban; § 862a(d) lets states opt out by passing their own law. Many states opted out fully; some partially; some not at all. Virginia opted out for § 18.2-250 only.

Va. Code § 63.2-505.2, enacted in 2005, says a person "shall not be denied such assistance solely because he has been convicted of a felony offense of possession of a controlled substance in violation of § 18.2-250." The opinion treats the General Assembly's choice to name only § 18.2-250 as decisive. The principle is that the legislature is presumed to use language with care, so naming one offense excludes others.

Va. Code § 18.2-248 is the principal trafficking statute; it reaches manufacture, sale, gift, distribution, and possession with intent. The AG read manufacturing under § 18.2-248 as a provision that "by its terms includes possession among its elements," and read "obtain" in § 18.2-258.1 as meaning "to gain possession of." § 18.2-258.1 covers prescription-drug fraud and similar deceptive acquisition.

Common questions

Q: Was Virginia's opt-out from the federal drug-felony food stamp ban total or partial?
A: Partial. § 63.2-505.2 exempts only convictions for simple possession under § 18.2-250. Distribution, manufacturing, prescription fraud, and similar drug felonies under other Virginia statutes were not exempted.

Q: Does a manufacturing conviction under § 18.2-248 disqualify someone from SNAP?
A: Per this opinion, yes, if the specific violation is a felony. The AG read § 18.2-248 as a provision that "by its terms includes possession among its elements," so a § 18.2-248 felony falls within the federal "possession, use, or distribution" language.

Q: Does a Class 6 felony under § 18.2-258.1 (obtaining drugs by fraud) disqualify someone?
A: Per this opinion, yes. The AG read "obtain" as "to gain possession of," so a person who obtains drugs by deceit, forgery, false name, or concealment necessarily possesses them as part of the offense.

Q: Does this opinion mean every § 18.2-248 conviction triggers the ban?
A: No. The AG conditioned the disqualification on the specific violation constituting a felony. The opinion did not work through which subsections of § 18.2-248 are felonies and which are not.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2012/11-112_Mabe.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

January 27, 2012

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable Gerald E. Mabe, II
Commonwealth's Attorney
235 South Fourth Street, Suite 105
Wytheville, Virginia 24382

Dear Mr. Mabe:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You inquire whether the provision of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 that renders persons convicted of certain drug offenses ineligible for food stamp assistance applies to convictions for manufacturing drugs and obtaining drugs by false pretenses. You further ask whether § 63.2-505.2 of the Code of Virginia in turn operates to exempt those offenses from such application.

Response

It is my opinion that the Personal Responsibility and Work Opportunity Reconciliation Act encompasses felony convictions for manufacturing controlled substances or for obtaining controlled substances by false pretenses. It is further my opinion that those persons with such convictions are disqualified from receiving food stamp benefits because § 63.2-505.2 does not exempt such convictions from the application of the federal law.

Applicable Law and Discussion

Pursuant to the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, a person becomes ineligible to receive certain public assistance once convicted of "any offense which is classified as a felony . . . and which has as an element the possession, use, or distribution of a controlled substance." States may opt out of this provision by enacting specific legislation to that end.

In 2005, the General Assembly enacted § 63.2-505.2, which exempts certain food stamp applicants from the application of 21 U.S.C. § 862a. It expressly provides that a person "shall not be denied such assistance solely because he has been convicted of a felony offense of possession of a controlled substance in violation of § 18.2-250[.]" Thus, in exercising its discretion to exempt certain persons from the bar on benefits imposed by federal law, the General Assembly expressly chose only to exempt those who had been convicted under Virginia Code § 18.2-250.

As a result, persons convicted under other provisions of the Code of Virginia may still fall within the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 bar to receiving benefits. The question becomes whether the conviction is an "offense which is classified as a felony . . . and which has as an element the possession, use, or distribution of a controlled substance."

You have specifically inquired regarding §§ 18.2-248 and 18.2-258.1. Section 18.2-248, among other related things, provides, "[e]xcept as authorized in the Drug Control Act . . . it shall be unlawful for any person to manufacture, sell, give, distribute, or possess with intent to manufacture, sell, give or distribute a controlled substance or an imitation controlled substance." Pursuant to § 18.2-258.1, it is a Class 6 felony

for any person to obtain or attempt to obtain any drug or procure or attempt to procure the administration of any controlled substance, marijuana, or synthetic cannabinoids: (i) by fraud, deceit, misrepresentation, embezzlement, or subterfuge; or (ii) by the forgery or alteration of a prescription or of any written order; or (iii) by the concealment of a material fact; or (iv) by the use of a false name or the giving of a false address.

As you note, absent state legislation to the contrary, the federal law denies benefits for those who have been convicted of felonies involving the possession, use, or distribution of controlled substances. You ask whether the crimes stated above constitute disqualifying offenses. Manufacturing a drug is a violation of § 18.2-248, a provision that by its terms includes possession among its elements. Further, to "obtain" a drug is "to gain possession of" it. As such, provided the specific violation of either section constitutes a felony, then a conviction under either subjects the offender to the disqualification provision of the federal law.

Conclusion

Accordingly, it is my opinion that the Personal Responsibility and Work Opportunity Reconciliation Act encompasses felony convictions for manufacturing controlled substances or for obtaining controlled substances by false pretenses. It is further my opinion that those persons with such convictions are disqualified from receiving food stamp benefits because § 63.2-505.2 does not exempt such convictions from the application of the federal law.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General