Due to several recent changes to Virginia’s marijuana laws, the drug is effectively decriminalized as of July 1st, 2021.
In this article, we’ll cover the distinct ways that Virginia law treats marijuana possession and distribution differently than other drugs.
We’ll also outline the relevant Code sections that criminalize marijuana distribution, the punishments you can expect, and how you can go about fighting the charges.
If you are charged with either the possession or distribution of marijuana, it’s important to contact a lawyer immediately in order to prepare the best possible defense for your case.
Marijuana Possession in Virginia
The Virginia Code treats marijuana possession differently than it does for other controlled substances.
Specifically, as of July 1st, 2021, there are effectively no laws which outright criminalize the possession of marijuana, provided there is no obvious intent to sell that marijuana.
Before we continue with the Virginia-specific rules, however, it’s important to note that marijuana is still illegal at the federal level.
This means that federal courts still treat even a first-time charge for the possession of marijuana as a Class A misdemeanor.
This is especially important for individuals pursuing immigration relief (such as adjustment of status applicants), individuals who are in the military, or individuals who otherwise hold jobs at the federal level.
Employees of companies with federal contracts are also subject to these restrictions and additional random drug screenings.
Possession of Other Controlled Substances
Normally, the penalties for the possession of a controlled substance in Virginia include community service, a fine, and possibly jail time.
These penalties generally remain the same regardless of whether or not it’s your first offense.
However, first offenders may be eligible for deferred disposition programs that will make them eligible for probation rather than jail time.
Additionally, carrying a firearm—even a licensed one—while in possession of a controlled substance will only add to any penalties.
It’s the type of drug, not necessarily the amount, that will determine whether you are charged with a misdemeanor or felony.
However, in Virginia, large quantities of certain drugs are also an indicator of distribution, which can carry separate and additional charges from possession.
How Marijuana Possession is Different
The Virginia Code makes marijuana the sole exception to the rules described above.
Specifically, due to a change in Virginia’s marijuana laws that came into effect on July 1st, 2021, marijuana possession is no longer a criminal offense, and you cannot be charged for the simple possession of marijuana.
Should a police officer cite you with the possession of marijuana they are doing so on a now-repealed law, and you should take steps to fight the ticket in court.
Note, however, that the possession of marijuana can still give the officers probable cause to search your vehicle or home, such as if they have a reasonable suspicion that you intend to sell the marijuana elsewhere.
What About Marijuana Derivatives?
The legalization of marijuana in many other states has led to an explosion in the production and use of different types of marijuana oils and resins.
While legal in other states, the possession of these products is still largely illegal in Virginia.
As of July 1st, 2020, the state of Virginia no longer treats hashish oil (“hash”) differently from other forms of marijuana.
“Marijuana” means any part of a plant of the genus Cannabis whether growing or not, its seeds, or its 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 does not include the mature stalks of such plant, fiber produced from such stalk, or oil or cake made from the seeds of such plant, unless such stalks, fiber, oil, or cake is combined with other parts of plants of the genus Cannabis. Marijuana does not include [industrial hemp as defined in this statute].Virginia Code § 54.1-3401
Cannabidiol and THC-A Oil: What about medical marijuana?
Specifically, in July of 2019 the state approved a very limited exception for certain marijuana derivatives that lack psychoactive properties.
In the recent updates to the Code, these changes have been expanded to make medical marijuana legal throughout the commonwealth, provided the patients receive prior approval from a certified medical professional.
For this reason, you may possess small amounts of Cannabidiol or THC-A oil in Virginia, provided you have a legal prescription for a diagnosed condition or disease, as well as the explicit approval of the Virginia Board of Pharmacy.
If you are arrested for the possession of legal Cannabidiol or THC-A oil, get in touch with a lawyer.
In most cases, you should be able to file a certification with the court and get your charges dropped without the case going to trial.
To read more about this change, check out the following resources:
- Virginia Code § 18.2-251.1 — The criminal section of the Virginia Code on medical marijuana.
- Virginia Code § 54.1-3408.3 — The relevant Virginia Code section for this topic.
- The Virginia Department of Health Professions — A website for pharmaceutical professionals to learn more about the change.
- The Virginia NORML Website — A nonprofit organization that seeks to legalize marijuana in Virginia. We don’t necessarily share all of their views, but they have a well-written FAQ section on the topic.
Selling, Growing, and Distributing Marijuana
As with other drugs, Virginia law makes it a felony to grow, sell, or possess substantial amounts of marijuana with the intent to distribute it.
Unlike other forms of drugs, however, the penalties for distributing marijuana can vary based on the amount of drugs in your possession.
Home Cultivation of Marijuana for Personal Use
Due to recent changes to the Virginia Code, it is now perfectly legal to cultivate up to four marijuana plants for personal use in your residence.
This means that individuals who cultivate small amounts of marijuana at home for strictly personal use will generally be exempt from the normal distribution charges found in larger operations.
Possessing Marijuana with the Intent to Distribute
The penalties you’ll face for a charge possession of marijuana with an intent to distribute will depend on the amount of marijuana the police found at the scene.
Specifically, you’ll face the following charges based on how much marijuana they find:
- Possession of an ounce of marijuana, or less, with the intent to distribute is a Class 1 misdemeanor. It is punishable by a fine of up to $2,500 and up to a year in jail.
- Possession of more than an ounce but less than five pounds of marijuana is a Class 5 felony. It is punishable by a fine of up to $2,500 and up to 10 years in prison.
- Possession of more than five pounds of marijuana is a felony. It is punishable by a prison term of between 5 and 30 years.
Additionally, growing large amounts of marijuana and manufacturing its derivatives are both felonies in Virginia.
These are separate crimes which are punishable by an additional fine of up to $10,000 and a prison term of between 5 and 30 years.
Finally, you should also note that Virginia has a “three strike” rule when it comes to marijuana distribution.
Upon a person’s third felony conviction for marijuana production or distribution, the minimum penalty becomes a prison sentence of no less than 5 years.
Possessing Marijuana Paraphernalia with the Intent to Distribute
Selling or distributing drug paraphernalia is also a crime in Virginia.
Regardless of the amount of paraphernalia, distribution is a Class 1 misdemeanor punishable by a jail sentence of up to one year as well as a fine of up to $2,500.
Note that this generally refers to paraphernalia related to the sale and distribution of marijuana, as most forms of paraphernalia related to personal use (such as a pipe or grinder) will not lead to criminal charges.
Further, the distribution of drug paraphernalia to a minor is a felony.
The penalties for this crime can include a prison sentence of up to one year and a fine of up to $2,500.
Additional Consequences of a Marijuana Conviction
In addition to the direct penalties outlined in your sentencing (such as jail time, fines, and the suspension of your license) there are several other consequences you’ll want to take into account.
These consequences can range from ineligibility for professional licenses to restrictions on receiving state benefits.
Below, we’ll list some common collateral consequences that affect individuals convicted of drug offenses in Virginia.
Under Virginia law, employers can request criminal background checks for any potential hires.
This is especially true if the applicant is seeking a government position.
Having a serious marijuana charge on your record could cause an employer to pass you over for a potential job.
Further, certain drug offenses can bar you from entering some professions in the first place.
For example, most controlled substance offenses bar you from gaining employment as a school bus driver or elderly care provider.
Loss of Housing Opportunities
A particularly nasty effect of a controlled substance conviction is the loss of certain private and public housing opportunities.
Virginia landlords are allowed to perform background checks on potential renters, provided they don’t target specific racial or religious groups.
If you have a marijuana charge on your criminal record, a landlord may choose to deny your rental application.
Additionally, a landlord may choose to terminate your lease for “good cause” if you are arrested for possession on the premises of your rental home or apartment.
Similarly, a marijuana conviction could bar you from certain public housing benefits.
You can even be kicked out of your current apartment if you receive a felony marijuana conviction.
Finally, you should also note that the “One Strike, You’re Out” rule established back in the 1980s still applies to Virginia public housing.
Under this rule, a landlord can evict an entire household if even one member is convicted of a drug-related felony.
This rule applies regardless of whether anyone knew of the offender’s illegal activity.
Marijuana Charges and Immigration/Naturalization Proceedings
As a firm that processes many immigration cases, we’re especially aware of the effect that certain drug convictions can have on the lives of immigrants.
The collateral consequences from a marijuana charge can be even more serious for someone who is seeking legal status in the United States.
According to United States Citizenship and Immigration Services (USCIS), an essential requirement to naturalization is that the person is of “good moral character.”
If you have a criminal offense such as marijuana possession on your record, you may not meet that standard.
However, having a marijuana charge doesn’t necessarily bar you from citizenship.
For instance, if it’s a single offense for simple possession of 30 grams or less of marijuana, you should still be able to qualify.
Even if your offense is more serious, or if you have multiple charges, you can still submit evidence that you have paid the penalty for your crime and have rehabilitated.
In any case, the laws surrounding whether simple possession counts as a “Crime Involving Moral Turpitude” are a little murky.
For this reason, any non-citizen who receives a marijuana charge should contact an attorney immediately to see whether the charge will affect their status.
This is true even if you currently have legal status (i.e. “have a green card”) or are not otherwise seeking an adjustment of legal status.
Overall, Virginia’s laws tend to treat the possession and distribution of marijuana as lesser charges compared to other drugs.
However, that doesn’t mean that marijuana-related charges aren’t a big deal.
As always, your best bet for avoiding the worst of these penalties is to get in touch with an experienced criminal defense lawyer as soon as possible.
Only an attorney who has reviewed your case in full can fully advise you on the recommended course of action in your specific situation.