Clearing the smoke on Virginia’s new marijuana laws

Although the Virginia General Assembly has taken steps toward legalization, it is still very easy to run afoul of Virginia’s drug laws when it comes to marijuana. For example, under the new law anyone 21 years of age or older may legally possess on his or her person only up to one ounce of marijuana or an equivalent amount of marijuana product. Possessing quantities greater than an ounce can result in civil penalties up to $25 and possessing more than one pound can result in felony charges punishable by up to 10 years in prison and a fine up to $250,000. 

It is important to remember that possession or distribution of marijuana remains illegal under federal law. This is especially important for our local members of the military. Virginia lawmakers are banking on federal law enforcement not prosecuting small drug crimes, but there is always a risk to you.  

The new laws allow possession of up to an ounce of marijuana or equivalent marijuana products. 

The law says “marijuana" means any part of a plant of the genus Cannabis, whether growing or not, its seeds or resin; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, its resin, or any extract containing one or more cannabinoids. 

"Marijuana products" means (i) products that are composed of marijuana and other ingredients and are intended for use or consumption, ointments, and tinctures or (ii) marijuana concentrate.

Nowhere, yet. The new Virginia Cannabis Control Authority tasked with regulating the cannabis industry has yet to create regulations, including licensing and health and safety measures, and likely will not be accepting licensing applications from recreational or retail dispensaries until 2023. We expect to see recreational dispensaries open in 2024, but will have to wait for next year’s legislative session to learn whether the licensing provisions of the latest bill are reenacted. 

No. It remains illegal to import, ship, transport or bring marijuana into the Commonwealth. 

Yes, with significant restrictions. The new law allows you to cultivate up to four plants of marijuana at your main place of residence, but at no point can a single household have more than four plants. 

“Cultivate” means the planting, propagation, growing, harvesting, drying, curing, grading, trimming, or other similar processing of marijuana, but does not include manufacturing any derivatives or testing (i.e. you cannot create concentrate from your home grown marijuana). 

Growing more than four plants can subject you to the following criminal penalties:

• For possession of more than four marijuana plants but no more than 10 marijuana plants, (i) a civil penalty of $250 for a first offense, (ii) a Class 3 misdemeanor for a second offense, and (iii) a Class 2 misdemeanor for a third and any subsequent offense;
• For possession of more than 10 but no more than 49 marijuana plants, a Class 1 misdemeanor;
• For possession of more than 49 but no more than 100 marijuana plants, a Class 6 felony; and 
• For possession of more than 100 marijuana plants, a felony punishable by a term of imprisonment of not less than one year nor more than 10 years and a fine of not more than $250,000, or both.

Plants may not be visible to the public. So, keep those plants away from your front windows! Precautions must also be taken to prevent access to the plants by persons under the age of 21. Finally, each plant must be tagged with the grower's name, driver's license or ID number, and a notation that the marijuana plant is being grown for personal use as authorized by law.

The new laws do not appear to contemplate any sizing regulation of mature marijuana plants, other than the requirement that the plants be kept from public view. We all know that a single marijuana plant can easily produce more than one ounce of marijuana. The only limit on possession as the law is currently written is up to an ounce on your person or in public, and four plants in your main residence. The law is silent on whether you can have more than ounce produced from your plants, or more than one ounce in your private residence in general.  

Furthermore, the new bill passed July 1, defines an immature plant as a nonflowering marijuana plant that is no taller than eight inches and no wider than eight inches that is produced from a cutting, clipping, or seedling, and is growing in a container. Therefore, a commonsense reading of the law would allow a person to practice succession planting, so long as no four plants are mature at the same time. 

As of July 1, 2021, the sale of marijuana remains prohibited until 2024. Under the new law, a person may “gift” up to an ounce of marijuana to another person 21 years or older. The gift must not be shared in public. To be considered a legal gift, no money, benefit or service may be provided in exchange. So, yes, a person may give someone a gift of up to an ounce of marijuana, including an ounce from your homegrown plants, but criminal penalties remain for selling, distribution, and possession with the intent to sell or distribute. This prohibition applies to businesses, as well. 

Here is where the law gets really complicated. In Virginia, it is illegal to drive under the influence of alcohol and or drugs, including marijuana. The new laws do not change this. It is always unlawful to possess marijuana in a commercial motor vehicle.  

Furthermore, a judge or jury may presume that a person has consumed marijuana if an “open container” of marijuana is found in the car. An open container is any container other an original sealed manufacturer’s container. So, for all intent and purposes, because retail sales have not begun, there is currently no lawful container to transport marijuana in Virginia; any amount of marijuana in the car could constitute an open container. 

As such, the presence or odor of marijuana in the car combined with other factors can be a mechanism for police to arrest you. If you must travel with marijuana, keep it in the trunk. 

And remember, possession or transportation of any kind is still illegal under federal law. 

Not anymore. The smell of marijuana has long been used by law enforcement as a pretext to stop and frisk individuals. Under the new laws, police are prohibited from warrantless search and seizures of any person, place, or thing and no search warrant may be issued solely based on the odor of marijuana. This provision in the law, however, does not apply to searches in airports or if a violation occurs in a commercial motor vehicle.

Marijuana should always be used responsibly and you should never operate a vehicle in an impaired condition. In Virginia, there is no per se legal limit for marijuana in your system similar to a .08 threshold for alcohol. However, several problems may arise from driving after consumption of marijuana. If an officer pulls you over and believes your driving ability is impaired, he or she may ask you to consent to a blood test. Because marijuana can stay in your system for weeks or even months, otherwise lawful consumption of marijuana may be present on the test and result in criminal charges. 

No, the law prohibits you from smoking your legally-possessed ounce or less of weed in any public place. This is similar to ‘no drinking in public’ laws. This includes prohibitions against consuming marijuana while driving on a public highway or while being a passenger, as well as consumption on any public elementary or secondary school grounds.   

In many situations, yes! A marijuana conviction can have all sorts of implications from loss of employment to housing opportunities, and can even effect immigration status. Any prior arrest, criminal charge, conviction or civil offense for a misdemeanor marijuana violation of former § 18.2-248.1 or a violation of former § 18.2-250.1, including charges that were deferred and dismissed will begin to be automatically expunged on July 1, 2021, but no later than July 1, 2025. For any person convicted of felony marijuana violations of former § 18.2-248.1 or a violation of subsection A of § 18.2-265.3, a petition may be filed setting forth the relevant facts and requesting expungement of the police and court records relating to the arrest, charge, conviction or adjudication. An experienced and knowledgeable marijuana attorney can assist you in filing the petition and representing you at the subsequent hearing. Contact us today to represent you in this process. 

In short, yes. While there are some increased employment protections under Section 40.1-27.4 for those with valid medical marijuana cards effective July 1, 2021, there are still prohibitions against work impairment, as well as possession and or use at the workplace. For recreational users, Virginia remains an at-will employment state. Employers can still drug test and even terminate employment for marijuana use. While work policies may become more lenient over time in light of news laws, for example dropping marijuana from the panel of drugs tested, there is no guarantee.     

Probably not. Not all universities are following suit with Virginia’s new legalization of marijuana. Several university student codes of contact already have zero tolerance policies regarding any drugs whatsoever, while other universities are updating their codes to reflect specific plans to keep marijuana banned on campus.

Although proposals have been made to remove penalties surrounding gun and marijuana possession, until further reenactment, as of July 1, 2021, it remains illegal in Virginia under Section 18.2-308.4 of the Virginia Code to possess a firearm while simultaneously possessing more than one pound of marijuana. This is true under federal law as well. More specifically, 18 USC 922(g)(3) of the federal laws makes it a felony for unlawful users of marijuana to possess a firearm. 

Specific to medical marijuana use, right now, no state that has decriminalized marijuana reports or shares data related to the issuance of medical marijuana cards. Additionally, in 2014 the Rohrabacher-Farr Amendment passed prohibiting the U.S. Justice Department from using federal funds to prevent states from “implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” 

That being said, the current Form 4473 to acquire a firearm has a question asking, “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” Right below that question is a bold warning that “the use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medical or recreational purposes in the state where you reside.”

Challenges to Section 922(g)(3) thus far in the 7th, 8th, and 9th circuit courts have yet to be successful, but we expect to see more challenges as states continue to decriminalize marijuana.

In the same bill decriminalizing marijuana July 1, 2021, the General Assembly proposed amending Virginia Code § 19.2-303 Suspension or Modification of Sentence to include the following provision:

“any person who has been sentenced to jail or to the Department of Corrections for a marijuana offense, except for (i) a violation of subdivision (a) (3) of former § 18.2-248.1, (ii) a violation of subsection (d) of former § 18.2-248.1, or (iii) a violation of former § 18.2-248.1 where the defendant gave, distributed, or possessed with intent to give or distribute marijuana to a minor, may, at any time before the sentence has been completely served, file a motion with the sentencing court that entered the final judgment or order for a resentencing hearing. If it appears compatible with the public interest and there are circumstances in mitigation of the offense, including the legalization of marijuana, such court may reduce, suspend, or otherwise modify such person's sentence at any time before such person's sentence has been completely served. If the petitioner claims to be indigent, the petitioner shall additionally file with the court a statement of indigency and a request for the appointment of counsel on forms provided by the Supreme Court of Virginia. If the petition is not summarily dismissed and the court finds that the petitioner is entitled to representation by counsel subject to the provisions of Article 3 (§ 19.2-157 et seq.) of Chapter 10 of Title 19.2, the court shall appoint counsel to represent the petitioner.”

Whether this provision ultimately takes effect is dependent upon reenactment in the 2022 General Assembly Session.