Beginning July 1st, 2020, Virginia’s new marijuana possession laws took effect.
While the General Assembly has not fully legalized the substance,
Under certain circumstances,
Possessing it will no longer be a criminal offense.
What follows is a brief overview of the new laws,
And how future cases will likely be viewed by the courts going forward.
Possession of marijuana unlawful
The new law is really an amendment to the pre-existing statute,
titled § 18.2-250.1, “possession of marijuana unlawful.”
Below is the text of the statute broken down section by section,
Edited for clarity and explaining what it means:
“A. It is unlawful for any person knowingly or intentionally
to possess marijuana unless the substance was obtained directly from,
or pursuant to, a valid prescription or order…”
This part of the statute still makes it “unlawful” to knowingly possess marijuana
(in any amount), unless you have a valid medical prescription for it.
This means marijuana possession is still not yet legal.
This amended statute also affects only “simple” possession cases
(i.e, those cases where there’s no allegation of distribution), just as before.
However, what follows next is a very significant change
(also edited for clarity and emphasis):
“Any person who violates this section is subject to a civil penalty
of no more than $25. A violation of this section is a civil offense.”
This new language changes simple possession of marijuana offenses
From being a criminal offense to a civil offense
(like traffic offenses, for example).
In other words, if you are convicted under this amended statute,
Not only does the law now make the fine only $25,
But it also is NOT a criminal conviction,
Meaning if you are later asked
“Have you been convicted of a criminal drug offense,”
you may now lawfully answer “No.”
Like traffic tickets, there’s no limit to “how many” of these civil penalties one may have,
So theoretically, you could be charged
With simple possession of marijuana multiple times
And still not have a criminal misdemeanor on your record.
Marijuana possession can still be a criminal offense
Notice, however, the words “this section” underlined above.
Those words mean that the civil penalty outlined above
Only applies to persons charged under this law.
Because marijuana has not yet been fully legalized,
Under certain circumstances,
Marijuana possession can still be a criminal offense.
What are those circumstances?
For that, we need to look at another law: § 18.2-248.1,
Titled “Penalties for sale, gift, distribution or possession with intent to sell, give, or distribute marijuana.”
The new language is below, edited for clarity:
“…It is unlawful for any person to sell, give, distribute or possess with intent to sell, give, or distribute marijuana.
(a) Any person who violates this section with respect to:
(1) Not more than one ounce of marijuana is guilty of a Class 1 misdemeanor…
There shall be a rebuttable presumption
That a person who possesses no more
Than one ounce of marijuana possesses it for personal use.”
This law penalizes possession of marijuana, with the intent to distribute.
The most significant changes
However, there two significant changes here.
One, possession with intent is a Class 1 misdemeanor,
If no more than one ounce of marijuana is found.
Secondly, the last part of the statute creates an assumption
That the court must follow:
Unless the Commonwealth of Virginia can prove otherwise in court,
A person who has less than one ounce on marijuana
Is presumed to have it for personal use.
This law only penalizes possession with intent to distribute;
Marijuana that is for “personal use” is by definition not for distribution,
And is thus controlled by the first law, not the second.
Thus, the most significant change to Virginia’s marijuana law is this:
Now, if you are charged with possession of marijuana,
But you had only less than one ounce in your possession
(and no other facts indicate intent to distribute),
Then only the civil penalty can be applied.
Note, however, that marijuana charges
That allege more than one ounce at issue,
Or that include some element of distribution,
May still be punishable as a criminal misdemeanor.
Offenses that occurred before July 1st are still covered by the old marijuana laws
These new laws additionally are not retroactive.
What that means is that technically speaking,
Only new marijuana offenses charged after July 1st
Are governed by these amended statutes.
Marijuana offenses that occurred before July 1st
Are still covered by the old marijuana laws,
Which did not include the civil penalty
Or the personal use presumption.
However, it has been the practice of most Commonwealth Attorney’s Offices in Northern Virginia
To dismiss pre-July 1 st charges,
Since on a practical level it does not make sense
To continue to enforce a law that is no longer on the books.
However, some jurisdictions are staffed by judges
Who will openly defy such attempts by the prosecutors or officers
To dismiss these charges.
Consult an attorney
Well-experienced attorneys can argue
Against the court’s attempts to negate such dismissals.
While these new laws are a welcome step forward in progressive legislation,
They do not decriminalize the use or possession of marijuana.
It is still important to consult an attorney if you charged with this offense,
To be sure if your case could potentially fall under the criminal misdemeanor category,
Instead of the new and less-serious civil category.
The amended laws do not change the right to have a trial on the charge,
As with any ordinary traffic or criminal case.
Thus, if you would prefer to litigate the case rather than pay any civil penalty,
The law still grants you that right.
Note however that the average marijuana possession case
Is much more legally complicated than a regular speeding case,
Due to the 4 th Amendment of the Constitution often governing such incidents.
As with any criminal charge,
Consult an attorney to determine the laws that govern your case
And what the best way of handling the case is.