On April 11 th , 2020, Governor Northam of Virginia announced that he had approved a marijuana decriminalization bill in Virginia.
Although the bill has not yet been signed, due to a few remaining issues to resolve,
It is certain that the marijuana decriminalization bill will become law very soon.
Before it does, it’s important to review the law, and understand what exactly it changes.
The current proposed law, HB 972 / SB 2, changes the law with regard to the possession and consumption of marijuana,
And its accompanying penalties.
Decriminalization of simple possession of marijuana.
First, the marijuana decriminalization bill decriminalizes simple marijuana possession.
Possessing any amount less than one ounce is now only a civil violation with a penalty of no more than $25.
The bill provides that any violation of simple possession of marijuana may be charged by a summons.
In form the same as the uniform summons for motor vehicle law violations.
And that no court costs shall be assessed for such violations.
Possessing any more than one ounce would still be a criminal offense.
Possessing any more than one ounce of marijuana would still be a criminal offense.
Punishable as a Class 1 misdemeanor, with a maximum $2500 fine, and up to a year in jail, under Virginia Code § 18.2-250.1.
The bill also provides that a person’s criminal history record information shall not include records of any charges or judgments for such violations.
And records of such charges or judgments shall not be reported to the Central Criminal Records Exchange.
In other words, these new marijuana civil violations will not be reported to the CCRE.
And thus should not appear in future background checks, like any other routine traffic infraction.
Procedure for appeal and trial of simple possession of marijuana.
Also, the bill states the procedure for appeal and trial.
Any violation of simple possession of marijuana shall be the same as provided by law for misdemeanors.
So, like a speeding ticket, a person charged with a civil violation of marijuana possession can still fight the case in General District Court if they choose.
And may still appeal a guilty verdict to the Circuit Court as per the usual procedure.
Regarding the Circuit Court.
The marijuana decriminalization bill also provides that
If requested in the Circuit Court by either the Commonwealth or by the defendant, a trial by jury shall be provided,
And the Commonwealth will be required to prove its case beyond a reasonable doubt.
Driver’s license suspension for marijuana possession.
Additionally, the marijuana decriminalization bill provides that
The suspended sentence / substance abuse screening provisions and driver’s license suspension provisions
Apply only to criminal violations or to civil violations by a juvenile.
In other words, the existence of prior civil violations on one’s record will no longer preclude a person from participating in Virginia’s diversionary 251 program.
If they are later charged with a criminal possession offense.
Further, persons charged civilly (that is, with less than an ounce) will no longer have to be concerned about losing their driver’s licenses
Because they were driving at the moment they were charged, as that will no longer be allowed.
For juveniles however, prior civil violations will preclude participation in the 251 program
Though in general sanctions in juvenile court are much less severe.
Possession of marijuana for personal use.
The marijuana decriminalization bill also now defines “marijuana” to include hashish oil.
And it also creates a rebuttable presumption that a person who possesses no more than one ounce of marijuana
Possesses it for personal use.
That means that the government cannot argue in court
That a person possessed an ounce of marijuana with intent to distribute solely based on the fact that they had it.
More will now be necessary, as the law will now assume that such a small amount is for personal use only.
Disclosure or explanation of marijuana possession charges in Virginia.
The marijuana decriminalization bill also
(1) makes records relating to the arrest, criminal charge, or conviction of possession of marijuana not open to public inspection and disclosure, except in certain circumstances;
(2) prohibits employers and educational institutions from requiring an applicant for employment or
admission to disclose information related to such arrest, criminal charge, or conviction; and
(3) prohibits agencies, officials, and employees of the state and local governments from requiring an applicant for a license, permit, registration, or governmental service to disclose information concerning such arrest, criminal charge, or conviction.
Thus, not only will future records of marijuana convictions now be sealed,
Employers, schools, and government officials will no longer be allowed to ask you to disclose or otherwise explain any details as to that charge.
Expungement of the police records for marjuana possession.
More importantly, the marijuana decriminalization bill allows a person charged with a civil offense
Who is acquitted (found not guilty), a nolle prosequi is taken, or the charge is otherwise dismissed
To file a petition requesting expungement of the police records and court records related to the charge.
Note that civil offenses where the defendant accepted a guilty plea still cannot be expunged (like any normal traffic offense).
It is also unclear as of yet whether prior marijuana convictions will be able to be expunged
In situations where the amount at issue was less than one ounce.
Finally, the bill requires certain legislative officials to convene a work group to study the impact on the Commonwealth of fully legalizing the sale and personal use of marijuana
And report the recommendations of the work group to the General Assembly and the Governor by November 30, 2020.
Governor Northam has sent the bill back to Virginia’s General Assembly,
Proposing this legalization study have a new deadline of November 30 th , 2021.
Whether the General Assembly will approve this change will be known before the end of this month.
If the bill is ultimately enacted, marijuana decriminalization would be set to go into effect on July 1.
For those presently charged with marijuana offenses,
It is likely that the new law will now control the outcomes of arrests that occurred before it was enacted.
For those who were already convicted before, such records will be sealed under this new law.
And as noted above, these new civil offenses are able to be expunged if the outcome was a not guilty
Or the charge otherwise dismissed.