Consequences of Smoking Legalized Marijuana While on Probation in Virginia

Fairfax Criminal Defense Attorney Misha Lopez describes the consequences of smoking legal marijuana while on probation in Virginia.

If an individual has been convicted of any kind of crime in Virginia – felony or misdemeanor – there is a good chance that he is at least on unsupervised probation.  In other instances, especially for more serious offenses, a person may be on supervised probation, which could require active monitoring, completion of programs, and random drug testing.  An individual on probation (referred to as “the probationer”) is also subject to a “general good behavior” condition, which means the probationer cannot break any laws, have negative police contact, or be accused of creating any other issues or problems of an illegal nature.  If they do, they can be violated by their probation officer for the offending conduct, and could face serious consequences.

Given that the probationer will be punished if they are not of “general good behavior,” what happens when the person is on probation and smokes marijuana in a jurisdiction where it is fully legalized?  The remainder of this post explores some of the intricacies faced by probationers in the ever-changing context of legalizing marijuana across the country while being on probation in Virginia.

Can I Use Marijuana if I’m on Probation? 

To start, if a condition of probation is to refrain from all substance use, then it is quite clear that absolutely no marijuana (or other substance) use is permitted.  Whether it’s legalized or not will not matter if there’s a condition specifically stating marijuana, or drugs/substances generally, cannot be used unless prescribed or otherwise authorized.  Substance use will almost certainly lead to a probation violation being filed with the court.

Can I Use Legal Marijuana if My Probation Only Requires “General Good  Behavior”? 

For most offenses there usually is not a clear statement that no marijuana or drugs may be used.  If that’s the case, the only provision that may apply to legal marijuana outside of Virginia is the “general good behavior” provision.  In this context, the answer becomes far murkier.

From a purely legal perspective, it does not appear proper to find someone guilty of violating probation because they did something legal in one jurisdiction, simply because it is illegal in another jurisdiction.  If the act occurred completely outside of Virginia, and if the act was completely legal in the place it occurred, that conduct should not be the basis for punishment in Virginia because no laws were violated at the time the conduct occurred.

Unfortunately, that perspective has not gained the favor of judges in Virginia.  Marijuana is completely illegal in Virginia, except with some very limited exceptions.  Some judges have taken the view that, because marijuana is illegal in Virginia, a positive drug screen for marijuana is still a violation of Virginia’s marijuana possession laws, resulting in probation violation charges.

What Should I Do if I’m on Probation and Am Not Sure if I Can Smoke Legal Marijuana?

The best thing for a probationer to do is to ask his probation officer before smoking marijuana.  If the probation officer tells the probationer a violation will be issued upon a positive drug screen no matter the circumstances, then there is clearly a danger of being violated and punished by a judge.  Alternatively, if a probation officer informs the probationer he will not be violated (unlikely), then the risk of a negative consequence is greatly diminished.

In short, probationers should not think that, just because what they are doing is legal in some place outside of Virginia, it will not, or cannot, be grounds for a probation violation in Virginia.  When in doubt, the probationer should check with his probation officer on the parameters of what will cause a violation. 

Our Criminal Defense Attorneys Are Ready to Help

If you have already been violated for any reason, you need to consult with an attorney sooner rather than later.  Probation violation hearings are usually set soon after the probationer is in custody, and it is vital for any lawyer to have time to prepare the presentation of the case to the judge to give the probationer the best chance of a positive outcome.  Contact our trusted Fairfax attorneys by calling (703) 352-0100.

Mikhail N. Lopez
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Criminal Defense and General Civil Litigation Attorney
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