Cannabis in the Commonwealth: While the drug is legal in VA, TN law still prohibits use across state line

TRI-CITIES, Tenn./Va. (WJHL) – The recreational use of marijuana is now legal in the Commonwealth of Virginia, but while legal, there still are a number of rules when it comes to what you can and can’t do with the drug.

With this latest legislation, Virginia has become the 16th state to fully legalize the drug by allowing the use of medicinal marijuana (legalized in July 2020) and most recently, decriminalizing the drug.

Other states that have full legal status include Alaska, Arizona, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, New York, Oregon, South Dakota, Vermont, Washington and the District of Columbia.

While a number of states have made moves in marijuana legalization, the states that border Virginia are dramatically different. In Tennessee, marijuana is still completely illegal, with the medical use of marijuana banned and the use of the drug still a crime.

While the law in Virginia says you can now use marijuana, that is not the law of the land for those bordering states. On a federal level, marijuana is still very much illegal and still prohibits the possession of marijuana.

“Just because they made it legal, or legalized it, does not mean that it’s open season to start using, consuming, selling, distributing and trading across state lines, those things are still very much illegal,” said Commonwealth Attorney for Wise County and the City of Norton, Chuck Slemp.

The law that took effect on July 1, 2021 allows simple possession of marijuana in small amounts. If you have under an ounce, are transporting the drug to your home or using the drug at home, you will not be prosecuted or arrested.

However, that’s not the case in Tennessee. Even just half an ounce can land you in trouble with the law.

“If you’re caught with half an ounce here in Tennessee, you could face up to 11 months and 29 days in the county jail. Generally, that does not happen. Generally, it’s 11 months and 29 days of supervised probation with a pretty significant fine and court costs,” said Criminal Defense Attorney, Darcee Kubisiak.

Even with legalization in Virginia, there are still dos and don’ts when it comes to using the drug.

“Just because it’s legalized does not necessarily mean that it’s open season, anything goes and you can do whatever you want to. In fact, that’s not the case. There’s going to be licensers, taxation and a new special police force to make sure that you’re doing this the right way,” said Slemp.

According to Slemp, there are certain things that are still criminalized when it comes to using marijuana such as consuming it in public, bringing it across state lines, selling for profit and smoking and driving. Whether you’re in Virginia or Tennessee, if you use marijuana while behind the wheel and show impairment in judgment or erratic behavior behind the wheel, you can be arrested for DUI. Slemp said there’s an over 300-page bill with clauses and specifics on the new legislation outlining what you can and can’t do.

Marion Police Chief, John Clair, and his team have been preparing for this new legislation and have outlined the basic rules of the new law.

“Number 1, you’re allowed to cultivate up to four plants for individual use. Number 2, you’re allowed to possess up to an ounce for personal use, and you’re allowed to consume that in private. They need to be very cautious about traveling with marijuana, about using or possessing marijuana in public settings and about using marijuana in conjunction with firearms,” said Clair.

The new legislation also allows up to four marijuana plants per household, but those plants can only weigh a certain amount. It’s also still illegal to bring seeds in from outside the state, so how people will legally obtain seeds for plants at their home remains hazy.

While the plain smell doctrine has been removed in Virginia, the smell of marijuana in a car in Tennessee is still probable cause for a search and arrest.

News Channel 11 reached out to a number of police chiefs and sheriffs on the Tennessee side of the state line, all of which refused to comment on Virginia law, but they did say they plan to enforce the drug as they always have and that marijuana is still very much illegal on this side of the state line.

Since Northeast Tennessee and Southwest Virginia are so close, many people tend to work in one state and live in another. While it may be legal in your home state of Virginia, what you do at home can follow you into your workplace.

“Just because something is decriminalized does not necessarily mean that your employer cannot have rules,” said Attorney with Hunter, Smith and Davis, Joe Harvey.

In fact, whether you work in Tennessee or Virginia, an employer that submits to certain drug-free workplace policies has the right to fire you if you fail a drug test – despite whether or not the drug is technically considered legal at your home.

“I think there’s an important distinction to be made between something that’s allowed and something that’s protected. So even though smoking marijuana in Virginia may not be illegal, it may not be a criminal act, employers in Tennessee can still have rules that they implement and enforce,” said Harvey.

For those on probation in either state, if it was a condition of your release, using the drug can also land you back behind bars.

“They still can’t do it if they’re on probation here in Tennessee because if they test positive on a drug screen, for instance, they can be violated,” said Kubisiak.

Chief Clair fears that this new legislation will lead to an increase in criminal activity along the state’s border.

“We’re going to see an increase in black market activity and I think we’re going to see an increase in driving under the influence of marijuana along with an increase of the transportation and use across state lines,” he said.

Chief Clair said if you have questions about the new law and live in Smyth County, you can call and ask. While it sounds strange to call your local authorities about the dos and don’ts of legal drug use, he said he’d rather clear up questions so people are following the law from the start.

Bottom line, he said the most important things to remember are: