In November of 2018, Michigan voters approved recreational marijuana use, while voters in Missouri and Utah approved marijuana for medical use.
As a result of these votes, Virginia is now one of only 17 states that still criminalizes marijuana for both medical and recreational use.
However, this doesn’t mean that Virginia treats marijuana like any other drug.
Instead, Virginia uses a separate, special set of laws to deal with these cases.
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 possession and distribution, the punishments you can expect, and how you can go about fighting the charges.
However, despite these minor differences in the law, you should keep in mind that marijuana possession and distribution are serious offenses that usually require the assistance of an attorney.
If you are charged with either crime, its important to contact a lawyer immediately in order to prepare the best possible defense for your case.
Marijuana Possession in Virginia
As noted above, the Virginia Code treats marijuana possession differently than it does for other controlled substances.
Specifically, the Code classifies a first offense of marijuana possession as a Class U misdemeanor, which carries its own special set of rules and punishments.
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 fist-time charge for the possession of marijuana as a Class A misdemeanor.
This is especially important for individuals who are in the military, or who otherwise hold jobs at the federal level.
Possession of Other Controlled Substances
Normally, the penalties for the possession of a controlled substance in Virginia include the suspension of your license, 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.
- The Virginia DMV won’t necessarily suspend your license upon your first conviction for marijuana possession. Instead, a judge will usually assign you several hours of community service. Refusing or failing to perform this service will result in a license suspension.
- The penalties for a first offense of marijuana possession are actually quite low. However, they can increase for a second or subsequent offense.
As with other drugs, the penalties remain the same regardless of the amount of marijuana in your possession.
Similarly, possessing large amounts of marijuana can still be strong evidence for distribution charges.
Penalties for Marijuana Possession in Virginia
The penalties for marijuana possession are generally not as severe as for other drugs.
However, a conviction for a marijuana offense can still lead to hefty fines, jail time, and other serious consequences.
As a quick reference, here are the penalties for marijuana possession charges in Virginia:
- 1st Possession Offense: Class U Misdemeanor – If convicted your punishment can vary, but you’ll usually have to spend up to 30 days in jail and/or pay a fine of up to $500.
- 2nd or Subsequent Possession Offense: Class 1 Misdemeanor – For every conviction after your first, you’ll face up to 12 months in jail and a fine of up to $2,500.
In addition to the penalties detailed above, you could also face other penalties associated with these offenses.
For example, in some cases, you might lose your driving privileges for six months.
In others, you may have to perform community service in order to retain your driving privileges.
Actual vs. Constructive Possession in Virginia
As one final note before moving on, you should remember that there are actually two different types of possession in Virginia: actual possession and constructive possession.
“Actual possession” is the normal form of possession, where an officer directly finds marijuana on your person.
“Constructive possession,” however, refers to cases where you have the ability to access and exercise control over the drugs.
For example, if you are driving a car and, as a result of a lawful search, an officer finds drugs inside your armrest, that officer may charge you with possession if they are unable to ascertain the specific owner of the drugs during the search.
In cases of actual possession, the officer generally doesn’t have to “prove” that the drugs are yours, since they found the drugs on your person.
However, constructive possession charges are based on circumstantial evidence that points to you having both access to and control over the drugs.
Put another way, individuals charged with constructive possession may find it easier to defend themselves from the charges as opposed to those charged with actual possession.
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 illegal in Virginia.
The state of Virginia treats hashish oil (“hash”) and several other forms of marijuana concentrates differently from other forms of the drug.
Virginia treats any hash or other liquid marijuana which contain more than 12% THC by weight as a Schedule 1 controlled substance.
This means that the possession of these substances is a Class 5 felony, which can carry the following penalties:
- Immediate license suspension, as described above.
- A fine of up to $2,500.
- A prison sentence of between 12 months and 10 years.
If you bring hash oil into the state from elsewhere, you will face at least 3 and up to 40 years in prison.
As with all felony drug crimes, you will also face certain other penalties such as license suspension and the loss of certain rights.
Cannabidiol and THC-A Oil: Why Medical Marijuana Isn’t Really Legal in Virginia
In general, Virginia does not treat marijuana as a substance with legitimate medical uses.
However, the state has recently approved a very limited exception for certain marijuana derivatives that lack psychoactive properties.
For that 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.
This is because the law allows for an “affirmative defense” if you are caught with the oil on your person, provided that you meet certain other qualifications (such as registering with the 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 § 54.1-3442.6 – 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.
Editor’s Note: As a minor update to Virginia’s marijuana laws, it is now easier for school nurses and other health officials to distribute THC oil to individuals with a prescription from a doctor. Learn more by reading our article, “Virginia Code Updates for 2019: An Overview of the New Laws.”
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.
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, for your first two distribution convictions, you’ll face the following charges based on how much marijuana they find:
- Possession of half an ounce of marijuana, or less, 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 half 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 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.
All of the above penalties come with a mandatory license suspension.
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 maximum penalty becomes life in prison.
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.
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.
How to Fight a Marijuana Possession Charge in Virginia
How you choose to fight your marijuana charge will depend on three things:
- The seriousness of the charge (possession vs. distribution).
- The strength of the Commonwealth’s case against you.
- Whether or not it’s your first offense.
These three factors will greatly affect the paths available to you, as well as the penalties you should expect if convicted.
Generally, however, there are three main options that you should consider:
- Apply for Virginia’s First Offender Program or a similar, location-specific drug court program.
- Argue for a dismissal of the charges based on a procedural issue or another defense.
- Take a deal for a lower sentence in exchange for a guilty plea (“plea deal”).
We’ll outline each of these strategies below.
Virginia’s First Offender (“251”) Program
While the penalties described above are certainly a possibility in all criminal cases, the court will rarely throw the book at you for a first offense.
Specifically, Virginia offers a special “first offender” program to certain qualifying individuals which can help soften the blow of a marijuana charge.
This program basically trades a prison sentence for rehabilitation, and generally includes probation, education programs, drug tests, and sometimes even therapy.
However, this program only applies to people facing their first offense. Further, you must agree to plead guilty to the charge in court.
The First Offender Program in Practice
In essence, if the court is likely to find you guilty of your first drug offense, you can come to an agreement to defer the judgement until a later date.
Specifically, the court:
“…without entering a judgment of guilt, and with the consent of the accused, may defer further proceedings and place him on probation upon terms and conditions.”Virginia Code § 18.2-251
These terms and conditions generally require that you complete several tasks, such as:
- Successfully completing a treatment or education program or service as chosen by the court (expect this to take around six months).
- Remaining drug and alcohol free during the period of probation and submit to tests which prove this.
- Making reasonable efforts to secure and maintain employment.
- Complying with a plan for at least 100 hours of community service for a felony, or 24 hours for a misdemeanor.
If the court does not suspend or revoke your license, they will also require an additional 50 hours of community service.
Upon completing the program, you can return to the court and have your charges dismissed. The court will also reinstate your driving privileges.
However, the arrest itself cannot be expunged, and will still show up on future background checks.
Finally, you should note that failure to complete the program results in an automatic guilty verdict, as well as a permanent bar from taking the program again.
Challenge the Events of the Arrest
As noted above, another option is to argue for dismissal due to procedural issues during your arrest or detainment.
Since this strategy is very case-specific, it’s important to talk over any possible strategies with your lawyer.
This is especially true if you’re ineligible for the First Offender Program or other diversion programs like a local drug court.
Take a “Plea Deal”
While not the preferable option, many marijuana cases end with the individual taking a plea deal.
A plea deal is a good idea when the Commonwealth has enough evidence to successfully convict you.
Instead of drawing the matter out, you and your lawyer can negotiate with the Commonwealth’s Attorney for a lower sentence in exchange for a guilty plea.
There are many advantages and disadvantages to taking a plea deal.
For this reason, you’ll want to discuss your options with an attorney before your trial.
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 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.
On the contrary, being convicted for even simple possession of marijuana can result in substantial fines and a permanent criminal record.
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.