Is Medical Marijuana Legal in Virginia?

Due to several recent laws, individuals may qualify for an affirmative defense in medical marijuana cases. However, the substance is still largely illegal.

Yes and no.

As of the publication of this article, the possession and use of medical marijuana remains illegal under both federal and Virginia law.

However, it is possible under current Virginia laws to ask certain certified doctors for written prescriptions for medical cannabis derivatives.

Specifically, Virginia law provides an “affirmative defense” for individuals who are charged with the possession of marijuana, but previously obtained medical authorization for the possession of these substances.

Put simply, if you are arrested for the possession of certain marijuana derivatives, but meet the stringent requirements for Virginia’s “affirmative defense” (such as having the approval of both your doctor and the Board of Pharmacy), you may be able to use the new laws to fight the charges against you.

Note, though, that you can still be arrested for marijuana possession even if you are responsibly using substances such as Cannabidiol or THC-A oil at the direction of your doctor.

Remember, the current laws only provide a defense to the possession of certain medical prescriptions.

For this reason, you should only use these prescriptions as directed by your doctor, and preferably in the privacy of your home.

In this article, we’ll further clarify the laws surrounding the possession and use of medical marijuana in Virginia.

However, please keep in mind that the current laws largely leave the details to the discretion of the officers, prosecutors, and judges involved in the case.

As a result of this “grey area” approach to medical marijuana, you should always speak to an attorney if you are arrested for marijuana possession in Virginia.

A Quick Look at Virginia’s Marijuana Laws

A detailed table showing the penalties for various marijuana crimes in Virginia such as possession and distribution.

The Virginia Code treats marijuana possession differently from how it treats other drug-related crimes.

Specifically, courts usually punish first offenses of marijuana possession as Class U misdemeanors, which carry lower penalties than other comparable drug crimes.

For example, a first-offense possession charge for a schedule 3 controlled substance such as codeine or xanax will usually be charged as a Class 1 misdemeanor.

This is a crime punishable by up to 12 months in jail and/or a fine of up to $2,500.

On the other hand, simple possession of marijuana will usually result in a maximum of 30 days in jail and a $500 fine.

If you choose to participate in a diversion program such as drug court or the Virginia First Offenders program, the penalties will often be even lower.

If you’d like to learn more about Virginia’s marijuana laws you should check out our extended guide on the subject.

However, the “gist” of the situation is that, while marijuana possession in any form is illegal in Virginia, the penalties associated with marijuana possession will generally be lower than that for possession of many other drugs.

It’s important to note, however, that each case is different, and a marijuana charge is not something to take lightly.

For this reason, it’s wise to hire an attorney with experience fighting drug charges in your local jurisdiction.

This is because a local attorney will often have location-specific knowledge about the programs and options available to you.

How is Medical Marijuana Different?

Medical marijuana example - cannabidiol oil next to marijuana on wooden table

The important thing for you to remember is that the Virginia Code makes little distinction between the possession of medical marijuana and normal marijuana possession.

Despite this, you may have heard stories about people receiving “prescriptions” for marijuana in Virginia.

Put simply, medical marijuana is illegal in Virginia.

However, the Virginia Code does provide an “affirmative defense” to individuals who are charged with the possession of certain marijuana derivatives, provided their case meets certain legal requirements.

To quote directly from the relevant Code section:

“In any prosecution under this section involving marijuana in the form of cannabidiol oil or THC-A oil…it shall be an affirmative defense that that individual possessed such oil pursuant to a valid written certification issued by a practitioner in the course of his professional practice…for treatment or to alleviate the symptoms of the individual’s diagnosed condition or disease…”

Virginia Code § 18.2-250.1(C)

Under this code section (and several related statutes), defendants who are already in criminal proceedings may claim this affirmative defense in situations where they followed all relevant guidelines governing cannabidiol and THC-A oil use in Virginia, but still ended up with a marijuana possession charge.

What does it mean to have an “affirmative defense” to a marijuana charge?

The best way to explain the legal term “affirmative defense” is to use a metaphor.

Imagine for a moment that you wake up on a weekday, but you feel too sick to go to work.

You call your boss to let them know, and your boss asks you to bring in a doctor’s note the next day just to confirm that you were sick for their records.

So, you go to the doctor for a checkup and they write you an official note that says “yep, it was smart for you to stay home today, take some medicine and get some rest.”

The next day, you go to work and show your boss the note stating that you were ill the previous day. Your boss accepts this note, and you continue working as normal.

In this metaphor, missing a day of work with no notice is generally seen as “wrong.”

However, because you went to the doctor for a note, your job is likely to write off your absence as “excused.”

Affirmative Defense in Practice

To return to the topic of an “affirmative defense,” judges will generally excuse people who use cannabidiol and THC-A oil as directed by their doctor, provided that the entire situation was approved by the Virginia Board of Pharmacy.

The use of these substances is still technically illegal. However, the court also recognizes the discretion of Board-certified doctors in prescribing these products to registered patients.

For this reason, in the event that such a registered patient is arrested for the possession of cannabidiol or THC-A oil, they simply have to claim this affirmative defense and file a “written certification with the court at least 10 days prior to the trial.”

Or, put another way, you just have to show the judge your “doctor’s note,” provided that the doctor is a Board of Pharmacy-registered physician and you yourself are registered as a patient with this Board.

If you’d like to read the exact rules surrounding this defense you should review Virginia Code § 54.1-3408.3, Certification for Use of Cannabidiol Oil or THC-A Oil for Treatment.

The basic gist of the situation, though, is that safe, responsible use of these substances at the discretion of your doctor will usually provide a sound defense to any resulting possession charges.

However, you must have an unexpired written certification from a board-registered physician, and you must be currently registered with the Board of Pharmacy.


Talking with doctor about medical marijuana prescription - ipad in foreground.

As possibly the most useful piece of advice we can give, you should always use these substances as directed by both your doctor and the Board of Pharmacy.

Keep your certification up to date and on your person at all times, and present this certification to law enforcement if you are questioned about the substance.

This applies even if you are coming to Virginia with medical marijuana from another state.

Remember that even if you are from a state where medical or recreational marijuana use is legal, Virginia laws will apply to possession within the Commonwealth.

In the event that you are still charged with possession, call an attorney and follow their advice for how to proceed.

As long as your products follow the Code’s restrictions, and you are not in possession of any other illegal forms of marijuana, the prosecution should dismiss the charges against you.

However, to avoid possession charges in the first place, it’s always a good idea to use your oil responsibly, preferably in the safety of your own home.

Further Reading:

Other Resources:

  • Virginia Code § 18.2-250.1 – This is the main law that criminalizes the possession of marijuana in Virginia. Of note here is section C, which discusses the use of cannabidiol and THC-A oil.

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