Virginia’s marijuana legalization law is a bit hazy; Here’s what you can do now and what work is ahead

Cannabis in the Commonwealth

RICHMOND, Va. (WRIC)- Simple possession of marijuana and limited home cultivation is officially legal in Virginia.

The moment marks a big shift as the Commonwealth becomes the first southern state to take this step.

However, there are several things Virginians can’t do under legalization, including smoking pot in public, possessing it on school grounds and using it under the age of 21. As it stands, buying and selling marijuana is expected to be banned until 2024, though some want that to change.

There are also a number of significant debates on the horizon. Next year, the General Assembly will discuss how to roll out recreational sales equitably and how to fully achieve justice for those still being adversely impacted by marijuana prohibition.

Gov. Ralph Northam backed an accelerated timeline for legalizing the possession of up to one ounce of marijuana after prior proposals flopped in the state legislature. His office sold it as a way to immediately end unequal enforcement against people of color.

Mike Thomas, 36, said he was incarcerated for misdemeanor marijuana possession twice in his early 20’s. He said it’s the only blemish on his record but it has continued to hamper his employment opportunities since.

“I’ve been punished for it for my whole life and had to walk around in fear of being punished for something that I medicate with,” Thomas said.

Now, Thomas is among those looking to get a piece of what’s expected to be a multi-billion dollar industry in Virginia.   

“More of us need to get involved and use the skills we once thought were something negative and turn them into a positive,” Thomas said.

As limited legalization takes effect in Virginia, a system update needed to begin automatically sealing all misdemeanor marijuana possession and distribution convictions, as well as charges, is underway, according to Sen. Scott Surovell (D-Fairfax). He said a petition process to seal felony marijuana distribution charges and convictions was also approved by the General Assembly.

To the disappointment of criminal justice reform advocates, lawmakers have yet to agree upon a process for re-sentencing those currently incarcerated for marijuana-related crimes. Surovell said it will be a priority next year.

In the meantime, with retail sales not set to start until 2024, Thomas fears hazy areas in Virginia’s new law could allow inequities to persist.

“There is sort of a gray area there for them to continue the same harassment that was done before for Black and Brown people,” Thomas said.

At the center of concerns is enforcement in the car.

Critics say a ban on “open containers of marijuana” is especially unclear. The provision was written when the General Assembly was planning on legalizing simple possession at the same time as retail sales, which would’ve provided an avenue to obtain sealed packaging.

While some lawmakers have advised people to put pot in their trunk while traveling, Chesterfield Police Chief Jeffrey Katz said there is no way to have marijuana in a moving vehicle legally.

Katz fears legalization will come with an increase in traffic accidents and fatalities.

Katz, speaking for the Virginia Association of Chiefs of Police, said departments statewide haven’t had time to complete additional training on how to recognize drugged driving, a task complicated by the lack of a breathalyzer-like tool to instantly detect marijuana intoxication.

On top of that, Katz said another new law that took effect recently bans officers from conducting a search based on the smell of marijuana alone.

“It’s not realistic that we are going to have the capacity in Virginia to address impaired driving,” Katz said. “The lawmakers in Virginia have really tied law-enforcement‘s hands when it comes to the enforcement of marijuana-related laws.”

Some advocates want the General Assembly to go even further and repeal what they consider overly harsh penalties on juvenile use and public consumption of marijuana.

Others are concerned legalization will increase access for kids.

Henrico mother Francene Katzen, a board member with “Substance Abuse Free Environment” or SAFE, said public education efforts on the developmental risks of marijuana use have fallen short.

“I do believe marijuana is a gateway drug for harder drugs for some people. Obviously not for everyone.” Katzen said.

Katzen said she saw it in her own home when her daughter started using pot in her teens. Two years later, she said she was hooked on heroin.

“I wouldn’t want anyone else to go through what we went through with the rehab, the expense and the heartache,” Katzen said. “I mean, until you go through it, you have no idea how awful it is. It’s terrible. And I’m one of the lucky ones that my daughter is alive.” 

Moving forward, the Joint Legislative Audit and Review Commission is calling for clarification when it comes to certain marijuana possession rules.

JLARC Chief Policy Analyst Mark Gribbin said, while Virginians can possess up to an once in public, there are not set equivalencies yet for vaping oils and edibles. That’s because the Virginia Cannabis Control Authority–the new agency that will craft these regulations–wasn’t authorized to form before July 1.

“It creates a little bit of a gray area for law enforcement and determining if this is a legal amount or not,” Gribbin said.

As adults get the green light to grow up to four pot plants per household under certain regulations, Gribbin said there is no clear limit on how much a person can possess in a private residence.

There is also no clear legal avenue to buy or sell seeds in Virginia, though they can be shared among adults as long as no money changes hands.

“I think the reality is that marijuana is being used in the Commonwealth of Virginia and seeds are available if someone chooses to obtain them,” Gov. Ralph Northam said when 8News asked him about this on Wednesday.

Whenever retail sales are allowed to start, localities will have the option to opt out through a voter referendum, according to Gribbin.

While Northam’s target date for recreational sales remains 2024, some are pushing for them to start sooner through Virginia’s existing medical dispensaries. The idea was rejected by some lawmakers in the 2021 session because they didn’t want dispensaries to get a head start in the recreational market.

“What legalization does is it allows the state to impose common sense guidelines that ensure public and consumer safety. Without enacting retail sales, we aren’t doing that,” said Virginia NORML Executive Director Jenn Michelle Pedini. “The most immediate option for retail sales is through the existing medical operators and this is what most states that enact adult use legalization do.” 

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