In historical fashion, the Virginia General Assembly passed multiple bills regarding the decriminalization of marijuana. With Monday, April 20, 2020, being commonly referred (not to be confused with “reefered”) to as National Weed Day, it is important to know what is and is not copesetic within the Commonwealth. Below is a list of the top six things to know about recent changes in Virginia’s laws:
- THIS DOES NOT APPLY TO MILITARY MEMBERS!!! This cannot be stressed enough. Marijuana use and possession is still illegal under federal law. More specifically, the federal government regulates drugs through the Controlled Substances Act and classifies marijuana as a Schedule I drug. As such, changes in state laws do not supersede a citizen’s ability to possess or consume marijuana if they are a federal employee or on federal lands, such as military service members, federal employees, and civilians on federal lands. For example, it is still illegal to “spark up” to celebrate the surrender of General Cornwallis while touring the Yorktown Battlefields as the park is a part of the National Park Service, a federal agency.
- It is not the law, yet. On April 12, 2020, Governor Northam issued a press release indicating he signed into law criminal justice reform legislation that includes “decriminalizing of simple possession of marijuana and sealing the records of prior convictions.” However, this does not mean the legislation immediately goes into effect. The Governor also proposed an amendment to House Bill 972, which is the specific bill allowing for the decriminalization of marijuana. As part of the Bill, a work group has been created to analyze legalizing sales and personal use of marijuana. The Governor has proposed pushing the deadline for the work group to submit its report to November 30, 2021. Because such an amendment was made, the Bill has been returned to the General Assembly for its approval. It is anticipated this will be approved on April 11th or 12th, which means the change in the law will likely take effect on July 1, 2020 with the other legislation signed into law by the Governor.
- Marijuana is not legal. Instead of legalizing marijuana, the General Assembly took steps to “decriminalize” possession of marijuana. In fact, you are still not allowed to have marijuana. However, the penalties for possession of marijuana are significantly reduced and it is now treated as a civil penalty. Specifically, the fine for possession of marijuana is $25.00 and “no court costs shall be assessed for violations” of this law. If a person is found in possession of marijuana, he or she will be giving a Uniform Summons, which is the same form used in traffic tickets. The Uniform Summons will advise the individual of the nature of the violation being charged, the amount of monetary fees assessed for the violations, the requirement to pay the fine or deliver notice of his or her intent to dispute the charge, the procedure to make such dispute, and the consequences for failing to timely pay or contest the charge.
- The burden of proof is still beyond a reasonable doubt. In the event an individual is cited with possession of marijuana, he or she is still entitled to due process and can dispute the violation. The procedure for appeal and trial of any violation will be the same as it has been historically. This means it will be tried just as a misdemeanor in the District Court for the jurisdiction upon which the violation was charged. However, the change in law gives the attorney for the Commonwealth (i.e. Commonwealth’s Attorney or local prosecutor) the discretion in whether he or she will prosecute such a case. This creates a greater parallel to driving infractions. In the event a Commonwealth’s Attorney declines to prosecute such a charge, the citing officer will stand in the place for the Commonwealth. In both cases, the Commonwealth has the burden to prove, beyond a reasonable doubt, that 1) the substance in the individual’s possession was marijuana and 2) the substance was in the possession of the person summonsed.
- You can have a lot of pot. Historically, the amount of marijuana has been grey area when distinguishing between possession and possession with the intent to distribute (PWID). The current change in the law creates a “rebuttable presumption that an individual who possesses no more than one ounce of marijuana possesses it for personal use.” According to livescience.com, the estimated average joint contains approximately 0.3 grams of marijuana. An ounce is the equivalent of approximately 28 grams. Therefore, the change in law creates a rebuttable presumption that possession of approximately 93 joints is for personal use!
Nevertheless, it is important to understand the nuances in the wording of this change in the law. First, it is still illegal to have any marijuana. If an individual is found to have one or less ounce of marijuana, he or she may be assessed a $25 fine. Second, just because an individual has less than an ounce of marijuana does not mean he or she is prohibited from being charged with possession with the intent to distribute. For example, there is a significant difference between an individual with a large baggie full of one ounce of plant material and an individual with a lesser amount of marijuana divided between multiple small baggies, with a scale, and a large amount of cash. In the above example, both individuals can be charged with possession with the intent to distribute. Both individuals are entitled to the presumption that the amount of marijuana is for personal use, but the evidence in the latter example may overcome that presumption.
- Marijuana charges will not be disclosed. Other than decriminalizing possession of marijuana, the greatest change to the marijuana laws within the Commonwealth of Virginia is the addition of Virginia Code §19.2-389.3, which prohibits convictions for possession of marijuana from being “open for public inspection or otherwise disclosed.” There are a number of exceptions to this prohibition, such as in determining eligibility to possess a firearm, preparation of discretionary sentencing guidelines, or for employment with law enforcement agencies. Also, it is illegal for state government agencies or employees to require an individual to disclose information concerning arrest, criminal charge, or conviction pertaining to the possession of marijuana; and, an application cannot be denied solely for an applicant’s refusal to disclose such information. In fact, a person who willfully violates this provision is guilty of a Class 1 misdemeanor for each violation. To be clear, arrests, criminal charges, and convictions will be reported to the Central Criminal Records Exchange (your criminal history); however, that information will not be made public. Therefore, even if you are charged such a violation, it may be in your best interest to have the incident expunged from your record if applicable.
These are significant changes to the law in Virginia. It cannot be stressed enough that marijuana possession and use is not legal in the Commonwealth. As such, the changes in the law will not prevent an individual from being stopped for using marijuana and will not prevent additional charges for other violations of the law that may result from a subsequent search. In the event you are charged with the civil violation of possession of marijuana, or any criminal charge, it is always best to consult with an attorney. We at Invictus Law are happy to be of assistance. Please contact us at (757) 337-2727 to schedule your consultation.