Written by attorney Luke Joseph Nichols

Virginia’s Marijuana Laws and Punishment

Yes, marijuana is still illegal in Virginia. And no, you can’t get a prescription here either.

Virginia’s marijuana laws are full of surprises. Even the smallest and insignificant bit of marijuana residue or ash is illegal. If a police officer can test it, you can get arrested for it.

All marijuana convictions come with a six-month loss of license even if the driver enters the first offender diversion program under Virginia code 18.2-251.

Possessing synthetic marijuana is more serious than real marijuana. And growing marijuana can result in five to 30 years in prison.

Another surprise is that there is no minimum quantity threshold for distribution. A person can be charged with distribution for sharing the scrapings from their pipe.

Possession of Marijuana

Va Code § 18.2-250.1 makes it a crime to possess any quantity of marijuana without a valid prescription. And a doctor cannot prescribe marijuana in Virginia.

It is a misdemeanor to possess marijuana. A first offense has a maximum penalty of 30 days in jail, a $500 fine, and a six-month loss of driving privileges. A second offense has a maximum penalty of 12 months in jail, $2,500 in fines, and a six-month loss of license.

First-time marijuana possession is a criminal offense and a conviction will go on a one’s criminal record forever. There is no way to expunge a criminal conviction in Virginia, even if the charge is later dismissed as part of a first offender program.

Marijuana resin, tar, residue, ash and most parts of the plant are treated as marijuana according to Va. Code §54.1-3401. Mature marijuana stalks are not considered to be marijuana under Virginia law, but only if the stalks are not combined with any other illegal part of the marijuana plant.

Because of this law, the police can charge a person with possession if they have even the tiniest amount of residue or ash on a pipe, bong, or grinder. If you have a dirty pipe, bong, grinder, or a similar item, then you can be charged with possession of marijuana.

Possession of marijuana requires the government to prove two things: 1) that the substance was marijuana and 2) that the defendant possessed it.

Proving that a substance is marijuana requires field or laboratory testing. Marijuana testing presents complicated evidentiary and legal issues.

Proving possession requires proving 1) that the defendant knew that the marijuana was in their control and 2) that the defendant knew the item was marijuana.

Possession with the Intent to Distribute (PWID) Marijuana

Va Code § 18.2-248.1 outlaws possession with intent to distribute marijuana, or “PWID-marijuana" for short (pronounced “pee-wid").

There are several ways the police attempt to prove possession with intent to distribute: undercover drug buys, confessions, text messages from the defendant’s phone, the quantity of drugs (more than the amount typical for personal use), possession of scales, individually packaged drugs and possession of lots of cash.

The punishments for PWID-marijuana increase as the quantity of marijuana in the defendant’s possession increases. However, there is no minimum quantity for PWID-marijuana. One officer I know made a PWID arrest after he witnessed one man pass a joint to another man while they were smoking weed on a stoop.

PWID up to .5 ounces of marijuana is a misdemeanor with a maximum of 12 months in jail and a mandatory six-month license suspension.

PWID more than .5 ounces and less than five pounds of marijuana is a felony with a maximum of 10 years in jail and a mandatory six-month license suspension.

PWID more than five pounds of marijuana (but less than 100 kg) is a felony with a maximum of 30 years in jail and a minimum of five years in prison.

PWID of 100 kilograms or more of marijuana is a felony punishable by 20 years to life in prison. If you have been arrested for possession with intent to distribute over 100 kilograms of marijuana, you probably do not need this book to know you are in trouble.

PWID Near a School

Va Code § 18.2-255.2 bans possessing drugs with the intent to distribute (PWID) near schools, day care centers, school bus stops, and many other public locations. This law applies even if the defendant was not intending to distribute the drugs on school property.

For example, if a suspect is arrested for PWID while driving through a school zone, they may be guilty of PWID near a school.

There is a long list of locations where this statute applies: any public property within 1,000 feet of a school, including colleges and junior colleges, day care centers, recreation centers, public libraries, community centers; within 1,000 feet of a school bus stop if children are there; any public property within 1,000 feet of a state hospital or health facility.

Growing Marijuana

Growing, producing, preparing, propagating, compounding, converting, or processing marijuana that is not just for personal use is a felony with a maximum fine of $1,000,000 and a maximum of 30 years in prison with a five-year minmum .There are no minimum quantity requirements. A person can be guilty of this serious felony for growing a single plant and giving a home-grown joint to a friend.

Possession of Drug Paraphernalia

The only items that count as drug paraphernalia under Va. Code 54.1-3466 are syringes and items used for injecting drugs. Scales, grinders, bongs, etc. are not paraphernalia under this statute.

However, this statute is often used by defense attorneys as a substitute for many other drug crimes. This charge is a popular plea deal because it won’t result in a license suspension. People who need to drive may prefer a conviction for paraphernalia rather than a conviction of any of the other drug crimes.

A prosecutor and defense attorney can agree to amend a drug charge to possession of paraphernalia even if the defendant did not possess any syringes, but only if both the defense attorney and the prosecution agree.

Possession of Synthetic Marijuana (Spice or K 2)

Synthetic marijuana (also called K2 or Spice), is an industrial insulator that causes a high when smoked. For several years it was not illegal and was openly packaged and sold in stores as synthetic “legal" marijuana.

In 2011 the Virginia legislature outlawed a long list of synthetic compounds used in knockoff marijuana. By the time this law was passed, fake weed was being sold openly and legally online and in gas stations in Virginia.

Many people are still ignorant of this law and some seller still sell synthetic marijuana openly without knowing (or caring) that it has been outlawed.

As the time this article is being written there are currently no field test kits for synthetic marijuana. The police and synthetic marijuana users have difficultly knowing which types of synthetic marijuana contain the now illegal substances. Laboratory testing is currently the only way of identifying illegal synthetic marijuana.

The penalties for synthetic marijuana are much more severe than the penalties for possession of real marijuana. First time possession of synthetic marijuana is a Class 1 misdemeanor with penalties of up to 12 months in jail. Possession with intent to distribute (PWID) synthetic marijuana is a felony that comes with up to five years in prison.

Luke J. Nichols

Nichols & Green pllc

[email protected]

(703) 383-9222

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