The Virginia Legislature Decriminalizes Simple Possession of Marijuana

      The Virginia legislature has taken a subtle but important step toward reducing racial and economic disparities in Virginia’s criminal justice system by voting to decriminalize simple possession of marijuana. Currently, simple possession of marijuana carries penalties of up to $500.00 or thirty days in jail. A second similar offense carries a penalty of up to twelve months in jail. The revised laws will become effective on July 1, 2020. It is important to understand what these statutory changes will and will not accomplish for Virginians.

       Under revised law, a person in possession of one ounce or less of marijuana will be subject to a civil penalty of $25.00. That means, under normal conditions, a law enforcement officer will issue a summons to a person in simple possession of marijuana the same way he would in response to a simple traffic infraction. Virginians should take notice of additional important legal changes related to marijuana decriminalization.

  • Persons summoned to appear in court for simple possession will no longer be responsible for payment of court costs;

  • The Commonwealth will still be required to prove its case beyond a reasonable doubt at trial;

  • Judgments under the new law will be protected from public disclosure; and

  • Courts would no longer be required to suspend the driver’s license of a person in simple possession.


Constitutional Implications

     Virginia courts will most certainly, in a short time, have to assess the lawfulness of detentions, arrests, and searches, based at least in part on the odor of marijuana. The law, while a substantial step toward equal justice in Virginia, does not reach far enough if its purpose was to ameliorate racially disparate outcomes in criminal policy.

With the decriminalization of a minor quantity of marijuana, the smell alone, whether burnt or unburnt, would generally not be indicative of criminal behavior.  An officer who believes a person is in possession of marijuana may stop and briefly detain the suspect. And the decriminalization of marijuana does not change the fact that the substance is illegal contraband for constitutional analyses.  With that in mind, Virginia courts would agree that a law enforcement officer may still search an automobile if he believes marijuana is located inside of it. But an arrest, based wholly on the odor of marijuana, would not pass constitutional muster. Likewise, the odor of marijuana coming from a residence, standing alone, would be insufficient to justify the issuance of a search warrant.

     Virginians in simple possession of marijuana should understand that decriminalization should not be regarded as a “get out of jail free card.” Too often simple vehicle searches have resulted in fishing expeditions, which have led to more serious criminal charges.  Virginians should support the legislature for this bold move toward equal justice but must remain active and vigilant to ensure this was the first of many steps. Call the Gaines Law Firm today to discuss your legal rights and responsibilities under revised marijuana laws.

--Makiba Gaines, Esq.

The Gaines Law Firm

(757) 322-7826