Marijuana legalization in Virginia isn’t quite as simple as it sounds.
Earlier this year, the General Assembly voted to make legal the possession of small amounts of marijuana for anyone 21 and older. But the law — which took effect Thursday — is considered a work in progress and can be confusing.
Lawmakers are still hashing out the rules for a marketplace in which marijuana can be bought and sold. Meanwhile, you can now “possess” marijuana — including by growing your own plants — but you can’t legally buy it, sell it or use it public.
Here are some questions and answers to help navigate the new law:
Why are marijuana laws being changed?
There’s been a national trend in recent years toward pot’slegalization. Advocates contend the old laws result in too many people ensnared in the justice system for no reason. Pot is increasingly seen by the public as a drug that doesn’t typically harm others, with many no longer believing it’s a “gateway” to harder drugs. Advocates also argue that prohibition has led to inequitable enforcement: Black residents over the years have been far more likely than white ones to be charged on marijuana offenses, even though studies conclude that similar percentages of Black and white people use the drug.
What happened in the General Assembly on this in recent years?
A year ago, lawmakers in Richmond voted to “decriminalize” the possession of smaller amounts of pot — moving it from a criminal to a civil violation. Instead of a Class 1 misdemeanor that stayed on records for years, it became a $25 civil fine akin to a parking ticket. But now it’s not a civil violation, either. People 21 and over can “lawfully possess” up to an ounce of weed, or enough to fill about 85 joints. It remains illegal for those under 21 to possess pot in any way.
Wasn’t pot legalization not supposed to begin in 2023 or 2024? Why now?
The original legislation envisioned that legalization would begin in 2024 — timed to the formation of a regulated marketplace where the pot could be bought and sold. But that plan was scrapped late in the legislative session out of concern that thousands of people could still be charged with drug possession before then. Lawmakers saw that as unfair, given the state’s inexorable move toward legalization. So they created a two-tiered process where legalization would begin now, even as the marketplace won’t be in place until 2024.
So if there’s no place yet to buy and sell these drugs, where does someone get it?
You have to either grow it yourself at your house, or get it as a “gift” from someone who grows it. You can also get cannabis through a prescription for medical marijuana from a small number of dispensaries.
Are there any rules on growing marijuana plants at home?
Yes. Adults 21 and over “may cultivate up to four marijuana plants for personal use at their place of residence,” the new law says.
That four-plant limit is “per household” — even if that household includes more than one adult. Growers “must take precautions to prevent unauthorized access by persons younger than 21.”
Though there’s no limit to the size of the plant, they must be “tagged” with the grower’s name, driver’s license number and a notation that it’s being grown for personal use.
“Plants may not be visible to the public,” according to the “Clear the Smoke, Virginia” web page from the Toscano Law Group in Virginia Beach. “So, keep those plants away from your front windows!”
If you grow between five and 10 plants, you can be hit with civil penalties. Misdemeanor criminal charges begin if you have more than 10, and felony charges begin if you have 50 or more plants in your marijuana garden.
Can I sell a friend or relative the marijuana that I have grown?
Not legally. Someone who grows marijuana plants at home can “share” the weed with someone 21 and over as “a gift.” But they are barred from selling it — either for money or by way of a trade. You also cannot “gift” the pot to anyone under 21.
If you sell pot to an adult rather than giving it away, you can be convicted of a Class 2 misdemeanor on the first offense, and a Class 1 misdemeanor — punishable by up to a year in jail — for the second. Anyone who gives pot to a minor is guilty of a Class 1 misdemeanor.
Where can I get the seeds to grow the plants?
This is a murky area that isn’t discussed in the new state statute. While buying and selling seeds is barred under the law, most believe that people will get the seeds from others who are already growing pot, and that law enforcement won’t prosecute them. “The law that passed has more than a little bit of “wink, wink, nudge, nudge” in it,” blogger Don Ripper wrote in a post on Bacon’s Rebellion, a website devoted to state issues.
Won’t most current marijuana users still get their pot from their current illegal sources rather than growing plants at home?
Probably.
Will I be arrested if I have more than an ounce of marijuana?
It depends on how much you have. If you have more than an ounce of pot, it’s a civil violation — punished by not more than $25. But having more than a pound of pot — enough to make about 1,400 joints — is a felony punishable by up to 10 years in prison and a $250,000 fine.
Am I allowed to smoke pot in public?
Not legally. You can’t legally smoke a joint while walking your dog, going to the store or talking to your friend on the sidewalk outside your home. You’re also barred from consuming or “offering” marijuana to another person at a concert, festival or any public place. Violating these rules are a $25 civil fine on first offense — and a fine plus a substance abuse treatment on the second. Law enforcement agencies are expected to enforce this in various ways, with some saying they will start out by simply telling people to put out the joints.
Is it still against the law to drive while smoking pot in Virginia?
Yes. You cannot legally use marijuana on Virginia’s roadways, either as the driver or passenger. And driving while intoxicated — including under the influence of pot — remains a serious crime. Some of the biggest opposition to the marijuana’s legalization during the legislative session came from the American Automobile Association and other groups who voiced concern that legalization would create more impaired drivers and make roads more dangerous. Having an open container of weed in the car can be seen in court as an indication that you’ve used it while driving. Experts say to put the weed in a closed container in the trunk.
How are police going to enforce the law against people driving while high on pot?
That’s considered one of the biggest challenges here — as it has been for years already: There’s nothing equivalent to a Breathalyzer to detect pot impairment. Blood and urine tests aren’t too helpful, either: While booze stays in your system for hours, marijuana stays in your system far longer, making it difficult for such tests to accurately pinpoint a time of impairment. If weed usage spikes with the new law, police departments statewide will have to ramp up officer training to better recognize driver impairment caused by pot. It remains to be seen how much of a challenge that will be.
Can police still search cars on the basis that they smell marijuana “emanating from the vehicle”?
Not usually. Under a separate provision that went into effect on March 1, police officers can no longer search vehicles “solely” on an odor of marijuana — with that law saying that nothing officers found in such a search (such as drugs or an illegal handgun) can be used in a prosecution. That change came after reformers contended that police across the country were widely using the odor of marijuana as “pretexts” to search any car at will. Virginia judges will have to determine whether an “odor of marijuana” can still help to establish probable cause for police searches after car wrecks or erratic driving.
Isn’t it still a federal crime to possess and use marijuana?
Yes. Marijuana possession remains illegal under federal law, with the third pot possession offense an automatic federal felony. It’s also a federal felony — with five years of jail time — to grow marijuana plants as now allowed in Virginia.
Federal law also bars anyone who uses pot from owning a gun, with the federal background check asking applicants if they are “an unlawful user” of marijuana or other narcotics.
“Warning,” the ATF form says. “The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized … in the state where you reside.” Lying on the form is a federal felony punishable by up to 10 years in prison.
How do the new state laws on legalization align with the federal marijuana restrictions?
They don’t, and federal law trumps state law where there’s a discrepancy. On the other hand, the federal government has largely ceded to the states on this issue, given that it’s been local police officers and sheriff’s deputies — not federal agents — at the forefront of marijuana law enforcement. There’s also recent discussion about legalizing marijuana at the federal level.
Who will oversee Virginia’s new marijuana marketplace?
A new state agency, the Virginia Cannabis Control Authority — similar to the Virginia Alcoholic Beverage Control Authority — will run the state’s pot marketplace beginning in 2024.
The authority will be overseen by a five-member board, appointed by the governor, with the power to make and enforce regulations to promote health and prosperity and “prevent any corrupt, incompetent, dishonest, or unprincipled practices.” They will have a full staff of employees, and be assisted by the “Cannabis Public Health Advisory Council,” to be made up of 21 members that reflect the racial, gender and geographic diversity of the commonwealth.
Regulations are being developed and are to be in place by July of 2023, which is when people can begin to apply for “licenses” to sell marijuana in Virginia. The marketplace is expected to fully up and running by January of 2024.
Peter Dujardin, 757-247-4749, pdujardin@dailypress.com
