Clarity In The Fog – Virginia Marijuana Law

Virginia has joined a growing number of states that have legalized the possession of small amounts of Marijuana. Once considered a bastion of hardline anti-drug law enforcement policies, the Commonwealth initially decriminalized the simple possession of Marijuana in 2020 allowing for punishment in the form of a civil fine of $25.00.

This past legislative session, the General Assembly legalized the possession of small amounts of marijuana by persons over the age of 21 years effective July 1, 2021. (Senate Bill, 1406).

There remain issues that have yet to be fully addressed For example, although Virginia has decriminalized simple possession of marijuana, “marihuana” remains a Scheduled Controlled Substance under Federal law. This dichotomy was addressed in the realm of medical marijuana.

But what does it all mean for Virginians who choose to use marijuana?

What’s Legal Under Marijuana Laws

Individuals who are 21 years and older are allowed to possess up to one ounce of marijuana in public places. The use of marijuana is generally permitted for adults in private residences. However, it is important to note that private residences have the right to impose restrictions on marijuana usage within their premises.

Regarding cultivation, adults aged 21 and over can grow up to four plants per household for personal use, subject to specified requirements.

Furthermore, according to the Virginia Cannabis Control Authority (CCA), “adult sharing” is legal. It refers to the transfer of one ounce or less of marijuana between individuals who are 21 years or older. However, it is crucial to understand that “adult sharing” does not cover scenarios where marijuana is given alongside a reciprocal transaction, such as in cases where a gift of marijuana is offered or advertised with the purchase of goods or services.

What’s Illegal? Penalties for Marijuana Possession

Any person who possesses more than one ounce or equivalent marijuana product but less than four ounces is subject to a fine of $25.

Possession of more than four ounces but not exceeding one pound of marijuana or an equivalent amount of marijuana products is considered a Class 3 misdemeanor for a first offense. For a second or subsequent offense, it is classified as a Class 2 misdemeanor.

If the quantity exceeds one pound or the equivalent, it is classified as a felony punishable by a jail term between one and ten years, along with a fine of up to $250,000 or both.

When it comes to marijuana plants, having more than four but less than 10 marijuana plants is subject to a fine of $250 for a first offense. Possession of more than 10 but less than 49 marijuana plants is a Class 1 misdemeanor while having more than 49 but less than 100 plants is a felony crime.

Under Virginia laws, for possession of more than 100 marijuana plants, a potential penalty can include imprisonment from one to 10 years, a fine of up to $250,000, or both.

Medical Marijuana Law

We recognize that the current legal landscape of medical marijuana law may, at best, be described as a hazy thicket. Marijuana is illegal at the federal level and has been deemed under federal law to have no medicinal purposes, but Massachusetts, as well as the majority of states, have legalized medical marijuana and created regulatory schemes for its administration and usage.

Complicating and confusing matters further, Congress has placed budgetary restrictions on the ability of the United States Department of Justice to prosecute individuals for marijuana usage in compliance with a state medical marijuana scheme, and the Department of Justice has issued, revised, and revoked memoranda explaining its marijuana enforcement practices and priorities, leaving in place no clear guidance. (Daniel Wright’s Case, 486 Mass. 98 (2020)). Thus, although the dichotomy of medical marijuana use between state and federal level law enforcement may be in a state of détente, it is less clear how the recreational use of marijuana in Virginia will be judged against existing federal standards.

Driving Under The Influence Of Drugs (DUID)

Those using marijuana recreationally should be cognizant of the continuing prohibition of driving or operating a motor vehicle while under the influence of any narcotic or self-administered intoxicant or drug of whatsoever nature, to a degree that impairs his ability to drive or operate any motor vehicle. §18.2-266 of the Code of Virginia, 1950, as amended.

No presumptive levels of marijuana in the blood system presently exist to establish intoxication, as do those for cocaine, methamphetamine, or phencyclidine. However, this does not preclude one from being charged and convicted of driving under the influence of drugs (DUID) based upon the use of marijuana.

Can an Attorney Help?

As one of the latest states to legalize marijuana in some capacity, Virginia is still navigating the uncharted waters of legalized cannabis.

Whilst possession can now be considered legal within the set boundaries, it’s important to know that smoking or consuming marijuana in public is a felony and remains illegal.

Speaking to an experienced attorney can be crucial for your case if you are facing a drug charge. They’ll be familiar with any law changes that could affect your case. They can also offer you advice tailored to your unique situation.

For more questions on Marijuana Laws in Virginia, reach out to our drug attorneys at Ashwell & Ashwell, PLLC.


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