New Marijuana Policy and Laws for Virginia 2017

Virginia Marijuana Laws 2017 – Updates from our Fairfax Criminal Lawyer

Marijuana will not be decriminalized this year in Virginia, but it is possible the Commonwealth will see at least two notable changes to current law:

  1. Expansion of medical uses (currently, the only affirmative defense for medical purposes is intractable epilepsy); and,
  2. Relaxation of certain penalties (notably, license suspension).

Note: if charged with possession of marijuana in Virginia, see our main marijuana possession and distribution law information page.

Last month, Virginia lawmakers introduced wide-ranging proposals — the following two are at the top of our list as most likely to become the law of the land:

Expansion of Medical Use

CVirginia Marijuana laws 2017 updatescurrently, intractable epilepsy is the only specifically listed condition one could raise as an affirmative defense to possession of Cannabidiol oil.

In 2015, a Bill was passed that was so narrowly tailored that few people were impacted. Patients with intractable epilepsy may have a legal justification that would hypothetically hold up in court, but only for very low level THC cannabis oil. This Bill was a good idea, but so far has accomplished next to nothing.

Here is the language added to the primary Virginia marijuana law – 18.2-250.1

“C. In any prosecution under this section involving marijuana in the form of cannabidiol oil or THC-A oil as those terms are defined in § 54.1-3408.3, it shall be an affirmative defense that the individual possessed such oil pursuant to a valid written certification issued by a practitioner in the course of his professional practice pursuant to § 54.1-3408.3 for treatment or to alleviate the symptoms of (i) the individual’s intractable epilepsy or (ii) if such individual is the parent or legal guardian of a minor, such minor’s intractable epilepsy. If the individual files the valid written certification with the court at least 10 days prior to trial and causes a copy of such written certification to be delivered to the attorney for the Commonwealth, such written certification shall be prima facie evidence that such oil was possessed pursuant to a valid written certification.”

54.1-3408.3. Certification for use of cannabidiol oil or THC-A oil to treat intractable epilepsy.

  1. As used in this section:

“Cannabidiol oil” means a processed Cannabis plant extract that contains at least 15 percent cannabidiol but no more than five percent tetrahydrocannabinol, or a dilution of the resin of the Cannabis plant that contains at least 50 milligrams of cannabidiol per milliliter but not more than five percent tetrahydrocannabinol.”

The problem with the law is that patients with this form of epilepsy must obtain their medicine from an out-of-state source.

The law that created the “intractable epilepsy exception” is thought by many to be too narrow, because more medical conditions ought to be included. This notion gave rise to SB 1298 and was sponsored by Sen. Jill Holtzman Vogel, R-Winchester.

SB 1298

 “Possession or distribution of marijuana for medical purposes; affirmative defense for treatment of certain conditions. Provides an affirmative defense to prosecution for possession of marijuana if a person has a valid written certification issued by a practitioner for cannabidiol oil or THC-A oil for treatment of, or to alleviate the symptoms of, cancer, glaucoma, human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease, Alzheimer’s disease, nail patella, cachexia or wasting syndrome, multiple sclerosis, or complex regional pain syndrome. Under current law, only the treatment of intractable epilepsy is covered by the affirmative defense.”

Three other bills before the General Assembly seek to expand medical uses of marijuana.
  1. HB 2135: Del. Mark Levine, D-Alexandria and would allow physicians and pharmacists to provide medical marijuana for any medical condition.
  2. HB 1637: Del. Glenn Davis, R-Virginia Beach would specifically address medical marijuana and Crohn’s disease.
  3. SB 1452: Sen. Louise Lucas, D-Portsmouth would include cancer.

Relaxation of Penalties

If convicted of possession of marijuana in Virginia – or if a defendant elects to go through the first offender (251) program – his/her license will be suspended for six months (under current law).

Read our take on the first offender program here.

The following Bill would address what many believe to be a silly by-product of the 1980’s War on Drugs (license suspension for possession offense, not involving operation of a motor vehicle).

SB 1091 (summary):

“Driver’s license; marijuana possession. Revises the existing provision that a person loses his driver’s license for six months when convicted of or placed on deferred disposition for a drug offense to provide that the provision does not apply to deferred disposition of simple possession of marijuana. The exception applies only to adults; juveniles will still be subject to license suspension. The provisions of the bill are contingent upon written assurance from the U.S. Department of Transportation that Virginia will not lose any federal funds as a result of implementation of the bill.”

The current Virginia Marijuana Law:

Currently, possession of any amount is a crime, punishable by up to 30 days in jail (for a first offense), or 1 year (subsequent offenses). Additionally, one’s license to drive is automatically suspended for 6 months.

There is a “first offender” program – which results in a dismissal of the charge – but the charge is never truly “gone,” because Virginia law does not allow a person convicted of marijuana possession to expunge the arrest record from his or her permanent public arrest record.

Read more about the expungement process.

The program also requires expensive drug treatment/counseling sessions, community service, loss of license, and drug screening.

Have we progressed at all?

Not much. But at least Virginia legislators appear to be strongly considering medical use.

Outlook and Opinion

I think the next thing the legislative branch will look at is expungement. Many of those charged would be counseled differently, and/or prefer to enter the first offender program, if the dismissed charge was expunge-able. Instead, many people hire an attorney because the first offender program is so unattractive, arguably frivolous. The main problem with the program is the fact that current law does not allow for expungement of the permanent drug arrest record even though the charge is dismissed.

If you or a loved one is currently faced with a pending marijuana possession or distribution charge, or if you have a prior arrest record and are interested in finding out whether or not you qualify for expungement, let us know.

Image courtesy of Zuzuan at

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Brenton D. Vincenzes is a lifelong Fairfax County resident and Fairfax Criminal Defense Lawyer. He is a member of the Virginia Association of Criminal Defense Lawyers, National College of DUI Defense, NORML, and has been awarded the following in 2014-15: Top 100 Trial Lawyer (National Trial Lawyers) Top 40 Under 40 Trial Lawyer (National Trial Lawyers) Nationally Ranked Top 10 Under 40 Defense Attorney (National Academy of Criminal Defense Attorneys) 10 Best in Client Satisfaction for Criminal Defense (American Institute of Criminal Law Attorneys) Nationally Ranked Top 1% Attorney Award Recipient (National Association of Distinguished Counsel) As a local leader, Mr. Vincenzes mentors troubled youths, volunteers his time to serve at his church, takes select pro bono clients, and strives to improve the community. Mr. Vincenzes represents men, women, and juveniles through zealous and diligent advocacy, strategic planning, and skilled trial work preparation. Mr. Vincenzes' areas of criminal law practice are broad, and include most felonies and misdemeanors such as: reckless driving, DUI & DWI, drug offenses, assault and battery, domestic violence, assault on an officer, destruction of property, alcohol offenses, firearm offenses, larceny, shoplifting, embezzlement, fraud, and other theft offenses, and moving traffic violations among others. His private legal services are available in most Northern Virginia jurisdictions, including Fairfax County, Arlington County, Prince William County, Loudoun County, Stafford County, Alexandria, Manassas, Leesburg, South Riding, and other cities and towns.


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