The marijuana laws in this region can be tricky. In this blog, we share what you need to know about possessing marijuana in Virginia.
Drug laws change all the time – sometimes new drugs are outlawed; other times, existing drug penalties are revised or eliminated. In the past few years, Colorado, along with Oregon and Washington, has led the charge to legalize recreational marijuana use. Virginia, on the other hand, has not followed the trend of decriminalization. As a result, it is important to know what the penalties are if you are traveling between these various areas and how the laws interact.
Table of Contents
Virginia’s Marijuana Laws
Virginia legalized marijuana for adults 21 and older in 2Here's a breakdown of the key points:
- Possession: Up to one ounce of marijuana is legal for adults to possess in public or private places. [Important to note: While consumption in private residences is generally allowed, property owners can restrict marijuana use on their premises.
- Sharing: Sharing up to one ounce with another adult 21+ is permitted, but there can't be any exchange of money or goods (no selling).
- Cultivation: Adults can grow up to four marijuana plants at their primary residence, but the plants must be hidden from public view and have specific tags for identification.
| Offense | Penalty | Incarceration | Max. Fine |
|---|---|---|---|
Possession |
|||
| Possession at one's residence for personal use | No Penalty | None | $ 0 |
| 1 oz or less in public | No Penalty | None | $ 0 |
| More than 1 oz - 4 oz in public | Civil Violation | None | $ 25 |
| More than 4 oz - 1 lb in public, first offense | Misdemeanor | None | $ 500 |
| More than 4 oz - 1 lb in public, second and subsequent offenses | Misdemeanor | Up to 6 months | $ 1000 |
| More than 1 lb in public | Felony | 1 - 10 years | $ 250,000 |
Cultivation |
|||
| Up to 4 plants | No Penalty | None | $ 0 |
| Failure to attach legible tag | Civil | None | $ 25 |
| Failure to prevent unauthorized access by persons younger than 21 | Civil | None | $ 25 |
| Plants visible from a public way | Civil | None | $ 25 |
| More than 4 - up tp 10 plants, first offense | Civil | None | $ 250 |
| More than 4 - up to 10 plants, second offense | Misdemeanor | None | $ 500 |
| More than 4 - up to 10 plants, third and subsequent offenses | Misdemeanor | Up to 6 months | $ 1,000 |
| More than 10 - up to 49 plants | Misdemeanor | 12 months | $ 2,500 |
| More than 49 - up to 100 plants | Felony | 1 - 5 years* | $ 2,500 |
| More than 100 plants | Felony | 1 - 10 years | $ 250,000 |
| * In the discretion of the jury (or the court in the case of a trial without a jury) confinement for not more than 12 months and a fine of not more than $2,500 | |||
Sale/Manufacture/Trafficking |
|||
| 1 oz - 5 lbs | Class 5 Felony | 1* - 10 years | $ 2,500 |
| 5 lbs - 100 kg | Felony | 5* - 30 years | $ 1,000 |
| More than 100 kg | Felony | 20 years* - life | $ 100,000 |
| To a minor who is at least 3 years younger | Felony | 2* - 50 years | $ 100,000 |
| Within 1000 ft of a school or school bus stop | Felony | 1* - 5 years | $ 100,000 |
Penalty Details
Possession
A majority of the Virginia legislature voted on April 7, 2021 to approve amendments to Senate Bill 1406 | House Bill 2312, which legalizes the personal use and possession of marijuana on July 1, 2021. Provisions in the law permit those age 21 and over to possess up to one ounce in public. Separate provisions in the law regulating the commercial production and retail sale of cannabis do not take effect until January 1, 2024.
“Adult sharing” of up to one ounce of marijuana or an equivalent amount of marijuana products between persons who are 21 years of age or older without remuneration is permitted under the new law. “Adult sharing” does not include instances in which marijuana is given away contemporaneously with another reciprocal transaction between the same parties; a gift of marijuana is offered or advertised in conjunction with an offer for the sale of goods or services; or a gift of marijuana is contingent upon a separate reciprocal transaction for goods or services.
In 2020, Governor Northam approved legislation (Senate Bill 2 | House Bill 972) decriminalizing marijuana possession offenses. It took effect on July 1, 2020. The law reduced penalties for offenses involving the possession of up to one ounce of marijuana to a civil violation – punishable by a maximum $25 fine, no arrest, and no criminal record, and established a rebuttable presumption that a person who possesses no more than one ounce of marijuana possesses it for personal use. It also explicitly seals past marijuana convictions from employers and school administrators. Separate legislation, SB 5013, signed into law in October 2020 permits those summoned to prepay their bill rather than having to appear in person for a court appearance.
Cultivation
A majority of the Virginia legislature voted on April 7, 2021 to approve amendments to Senate Bill 1406 | House Bill 2312, which legalized the personal cultivation of marijuana on July 1, 2021. Provisions in the law permits those age 21 and over to cultivate up to four plants per household at their primary place of residence. The law requires that no marijuana plant is visible from a public way without the use of aircraft, binoculars, or other optical aids, and that precautions are taken to prevent unauthorized access by persons younger than 21 years of age. To each plant must be attached a legible tag that includes the person’s name, driver’s license or identification number, and a notation that the marijuana plant is being grown for personal use.
Sale/Delivery
In VA, having a large quantity of marijuana is not proof of intent to distribute alone. Distributing more than one ounce of marijuana, but less than 5 pounds, is a Class 5 felony, punishable by at least one year but not more than 10 years in jail. For a first offense, the judge may use his discretion to sentence the offender to a term in jail for not more than 12 months and a fine of not more than $2,500.
- Va. Code. Ann. § 18.2-248.1 (2015) Search
Distributing more than 5 pounds, but less than 100kg, of marijuana is a felony punishable by no less than 5 and no more than 30 years in prison.
- Va. Code. Ann. § 18.2-248.1 (2015) Search
Distributing more than 100kg of marijuana is punishable with an automatic 20 years to life sentence, with 20 years being the mandatory minimum sentence. This mandatory minimum may be reduced by the judge if:
- the person does not have a prior conviction for a drug-related offense;
- the person did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in committing the offense and did not convince another participant in the offense to do so;
- the offense did not result in death or serious bodily injury to any person;
- the person was not an organizer, leader, manager, or supervisor of others in the offense, and was not engaged in a continuing criminal enterprise; and
- the offender cooperates with police and judicial officials by providing to the State all information and evidence the person has concerning the offense, but the fact that the person has no relevant or useful other information to provide or that the Commonwealth already is aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
A third sale or intent to distribute conviction brings a mandatory minimum sentence of 5 years.
- Va. Code Ann. §18.2-248 (H) (2015) Search
Distributing more than 1 ounce of marijuana to any person under 18 years of age who is at least 3 years younger than the offender, or using such a minor to distribute more than 1 ounce of marijuana, is a felony and will be punished with a mandatory minimum jail sentence of 5 years, a maximum sentence of 50 years, and a fine of no more than $100,000.
- Va. Code Ann. § 18.2-255 (2015). Search
Distributing 1 ounce of marijuana or less to any person under 18 years of age who is at least 3 years younger than the offender, or using such a minor to distribute less than 1 ounce of marijuana, is a felony and will be punished with a mandatory minimum jail sentence of 2 years, a maximum sentence of 50 years, and a fine of no more than $100,000.
- Va. Code Ann. § 18.2-255 (2015) Search
Distributing more than a half-ounce of marijuana within 1,000 ft. of a school or school bus stop is a felony, punishable with a mandatory minimum sentence of 1 year and a maximum sentence of 5 years, plus a fine not to exceed $100,000. However, if such person proves that he sold such controlled substance or marijuana only as an accommodation to another individual and not with intent to profit thereby, he shall be guilty of a Class 1 misdemeanor, punishable by confinement in jail for not longer than 12 months and a fine not to exceed $2,500.
Manufacture
Any person who manufactures marijuana, or possesses marijuana with the intent to manufacture such substance, not for personal use is guilty of a felony punishable by mandatory imprisonment of not less than five nor more than 30 years and a fine not to exceed $10,000.
- Va. Code Ann. § 18,2-248.1 (2015) Search
Trafficking
Transporting 5lbs or more of marijuana into Virginia with the intent to distribute it is a felony, punishable with a mandatory minimum sentence of 5 years, a maximum sentence of 40 years, and a fine not to exceed $1,000,000. A second or subsequent conviction for the same crime raises the mandatory minimum sentence to 10 years.
- Va. Code Ann. § 18.2-248.01 (2015) Search
Hash & Concentrates
In Virginia, hashish and concentrates fall under the definition of marijuana, meaning that the restrictions and penalties associated with marijuana also apply to hashish and concentrates.
Paraphernalia
Any person who sells or possesses with intent to sell drug paraphernalia, knowing that it is either designed for use or intended by such person for use to illegally plant, propagate, cultivate, grow, harvest, manufacture, inhale, or otherwise introduce into the human body marijuana is guilty of a Class 1 misdemeanor, punishable by no more than 12 months in jail and a fine of no more than $2,500.
- Va. Code Ann. §§ 18.2-11- 18.2-265.3 (2015) Search
Any person eighteen years of age or older who sells drug paraphernalia to a minor who is at least three years junior to the accused is guilty of an additional Class 6 felony, which is punishable by not more than 12 months in jail and a fine of not more than $2,500.
- Va. Code. Ann § 18.2-265.3 (2015) Search
Advertising for the sale of drug paraphernalia is a Class I misdemeanor with a punishment of confinement for not more than 12 months in jail and a fine of not more than $2,500.
- Va. Code Ann. §18.2-265.5 (2015) Search
Knowingly distributing any printed material the distributor knows contains advertisements for drug paraphernalia is a Class 1 misdemeanor, punishable by confinement in jail for not more than 12 months and a fine of not more than $2,500.
- Va. Code Ann. §18.2-265.5 (2015) Search
Miscellaneous
Fortified drug house
Maintaining a fortified drug house is a Class 5 felony, punishable with a mandatory minimum sentence of 1 year, and a maximum sentence of 10 years.
- Va. Code Ann. §18.2-258.02 (2015) Search
More Information
DRUGGED DRIVING
Every state criminalizes driving under the influence of a controlled substance. Some jurisdictions also impose additional per se laws. In their strictest form, these laws forbid drivers from operating a motor vehicle if they have a detectable level of an illicit drug or drug metabolite (i.e., compounds produced from chemical changes of a drug in the body, but not necessarily psychoactive themselves) present in their bodily fluids above a specific, state-imposed threshold. Read further information about cannabinoids and their impact on psychomotor performance. Additional information regarding cannabinoids and proposed per se limits is available online.
LEGALIZATION
Generally, legalization means a policy that supports a legally controlled market for marijuana, where consumers can buy marijuana for personal use from a safe legal source.
MANDATORY MINIMUM SENTENCE
When someone is convicted of an offense punishable by a mandatory minimum sentence, the judge must sentence the defendant to the mandatory minimum sentence or to a higher sentence. The judge has no power to sentence the defendant to less time than the mandatory minimum. A prisoner serving an MMS for a federal offense and for most state offenses will not be eligible for parole. Even peaceful marijuana smokers sentenced to “life MMS” must serve a life sentence with no chance of parole.
MEDICAL MARIJUANA
This state has medical marijuana laws enacted. Modern research suggests that cannabis is a valuable aid in the treatment of a wide range of clinical applications. These include pain relief, nausea, spasticity, glaucoma, and movement disorders. Marijuana is also a powerful appetite stimulant and emerging research suggests that marijuana’s medicinal properties may protect the body against some types of malignant tumors, and are neuroprotective.
Applying Marijuana Laws between D.C., Maryland, and Virginia
The variety of marijuana laws in effect can be confusing in this region. For example, what happens if you are a Maryland resident, but buy marijuana in D.C., and then travel to Virginia where you are stopped and charged with a possession offense? For starters, you will not benefit from the more generous laws of Maryland or D.C. Generally, you will be subjected to the laws of the place where the offense occurred. Thus, just because you acquired marijuana in a more liberal jurisdiction, does not mean the more liberal laws will apply to you.
The only exception is Virginia’s marijuana law regarding prescriptions for marijuana. Medical marijuana has been around far longer than recent legalization trends for recreational marijuana use. If you happen to have an out-of-state prescription for medical marijuana, you can rely on the prescription to possess marijuana within Virginia. Furthermore, if charged with a possession offense, a legitimate prescription for certain purposes in effect at the time of the charge is an affirmative defense.
Marijuana laws are complicated and will become more complicated as different states create different marijuana laws.
Our Criminal Defense Lawyers Can Help If Needed
If you are charged with a possession offense, call a trusted Fairfax criminal defense lawyer at Greenspun Shapiro Ginsberg & Yang PC to best assess your potential defenses and decide how to proceed. Driven by imagination and innovation, our office maintains a reputation for scrupulous and tenacious preparation, as well as effective legal advocacy. This means you can count on our skilled attorneys to aggressively defend your rights and help you successfully resolve your case. Contact our Fairfax office at 703-352-0100 or by using the contact form.
We provide superior legal services to our clients throughout Virginia, Maryland, and Washington, D.C.