The legalization of marijuana possession in Virginia means major changes for local residents, law enforcement and the entire criminal justice system.
Virginia is the first state in the South to legalize simple possession of marijuana, with the passage of HB2312 and SB1406 by the General Assembly and Gov. Ralph Northam’s signing of the legislation. The new law went into effect Thursday.
Under the new law, adults 21 and older can legally possess up to one ounce of marijuana. The one-ounce rule applies to marijuana in all forms, including edibles and vape oil. Growing up to four marijuana plants per residence also is permitted under the new law.
“It’s a significant change to Virginia laws and how we do business,” said South Boston police chief Bryan Young. “We all have to get on board about how to do things differently, how to change our equipment and procedures, how we work with governmental and non-governmental agencies, how to address issues and be retrained on a lot of things we have traditionally done. We’re all trying to figure this out together.”
Under the new law, possession of more than one ounce but less than a pound of marijuana will be a civil offense, and the offender will face a fine of $25. Possession of more than one pound of marijuana in public remains a felony offense, carrying a penalty of at least a year in prison and up to a 10-year prison sentence and a $250,000 fine.
The overall impact of the new marijuana legislation on the Halifax County community remains to be seen, but local law enforcement did express concerns about the potential impact the new legislation may have on crime.
“We definitely have concerns from our experience that marijuana may open the door as a ‘gateway’ drug to other controlled substances that do damage to our communities,” Young said. “Marijuana and alcohol are usually two of the introductory substances that make their way into people’s lives and they sometimes move on to other controlled substances. However, there are also those who have the ability to use marijuana and alcohol in a recreational state and not move on to those other uses, as well.”
A major change for law enforcement officers under the new marijuana legislation is not having the ability to search a vehicle because of the primary reason of detecting the odor of marijuana or burnt marijuana.
The Halifax County Sheriff’s Office has one K-9 trained to detect the odor of marijuana and other drugs, which deputies will no longer be able to use during traffic stops under the new law.
“A K-9 that is trained to detect marijuana can no longer be used during a traffic stop,” Sheriff Fred S. Clark explained. “The K-9 can be used in special circumstances.”
Because officers no longer have the ability to search a vehicle because of the sole reason of detecting the odor of marijuana, Young said he would like to remind his officers not to rely on one reason alone to conduct a search.
“Officers must be reminded to use all of their senses, increase their observation skills, and utilize multiple reasons to make a basis for probably cause for their search,” Young said. “Most of the time there are multiple items that can lead an officer to make a probable cause determination to search, officers just have to ensure they are using more pieces of the proverbial puzzle, and not relying on one of the largest pieces as they may have historically.”
Consuming marijuana while operating a motor vehicle also remains prohibited. What’s more concerning to the South Boston police chief is the effect of the consumption of marijuana on a person’s ability to safely operate a vehicle, and that impairment while driving is where the chief said his officers would focus their enforcement efforts.
Young added he would ensure his officers are trained to look for the signs of impairment in individuals under the influence of marijuana, instead of relying on results of field sobriety tests alone.
“Indicators such as how a driver maneuvers a vehicle while underway; actions of the driver such as slurred speech, inconsistent responses and bloodshot eyes; as well as poor performance on standardized and other non-standardized field sobriety tests are all likely indicators officers may use to explain impairment,” Young explained.
The penalty for driving a vehicle while under the influence of drugs including marijuana or alcohol remains the same, Sheriff Clark noted.
Along with consuming marijuana while driving, consuming marijuana in public also remains illegal. Consumption of marijuana on private property and inside private residences appears to be the “acceptable”’ practice under the new legislation, Young noted.
“Public consumption is still unlawful, and at no time shall a person possess marijuana on school property,” Sheriff Clark noted.
Adults 21 and over who consume marijuana in public will be subject to a fine of no more than $25 for a first offense. Violators will face a $25 fine and be required to enter a substance abuse or education program, or both, for a second offense.
Not only will new legislation on marijuana change the way law enforcement does its job, but it will impact the criminal justice system, as well. The Virginia General Assembly has passed laws requiring the automatic expungement of past marijuana convictions starting in 2025.
“All records related to the arrest, criminal charge, conviction or civil offense of a person for a misdemeanor violation under the old marijuana laws, or a person who had completed a first offender program, must be expunged by the Department of State Police,” explained Commonwealth’s Attorney Tracy Q. Martin. “The expungement process means that prior misdemeanor marijuana convictions cannot be considered in future sentencing events.”
Expungement also means the records will not be open for public inspection and cannot be disseminated, “except to determine eligibility to possess or purchase firearms, fingerprint comparison, some criminal justice purposes and certain employment and volunteer screening,” Martin explained.
Under the old marijuana laws, Martin said people rarely served jail time for simple possession of marijuana as their sole crime.
“There is a common misconception that people serve jail time for simple possession of marijuana. This almost never happens,” Martin said. “In my experience, people do not typically go to jail for possession of marijuana unless they are using it despite a court order prohibiting it, when they are driving under the influence of it, or when they are committing more serious offenses while also in possession of it.”
Martin also noted that while simple possession of marijuana is legal, the sale of marijuana remains illegal. What is legal is the “sharing” of one ounce of marijuana or less between adults age 21 and older.
Retail sales of marijuana will not become legal until January 2024. At that time, the law will create a new, independent political subdivision, the Cannabis Control Authority, to regulate the marijuana retail industry.
The cultivation of marijuana plants at a private residence is allowed under the new law, but there are guidelines on the growth of marijuana plants, which Sheriff Clark further explained.
“A person 21 years or older may cultivate up to 4 plants at place their primary place of residence, but I want to make it clear, at no point can a household have more than 4 plants, no matter how many occupants reside at the residence,” Clark advised. “A person 21 years or older may cultivate marijuana plants only at such person’s main place of residence. A person that does this shall insure the following: No marijuana plants can be visible from a public way without the use of aircraft, binoculars or other public aids. Take precautions to prevent unauthorized access to persons under the age of 21.”
The new laws also state that each marijuana plant must have a tag attached to it which includes the person’s name, driver license or identification number, and a notation that the marijuana plant is being grown for personal use.