By Ned Oliver April 8, 2021 I
NC POLICY WATCH
Photo: Getty Images
The Virginia General Assembly approved legislation Wednesday that will make marijuana legal on July 1.
The votes make Virginia the 16th state to legalize the drug and the first in the South to take the step, though retail sales won’t begin until Jan. 1, 2024.
“The time has come for our state to legalize marijuana,” said House Majority Charniele Herring, D-Alexandria, who sponsored the bill, arguing the revised legislation ensures “that while we’re doing the complicated work of standing up a commercial market, we aren’t delaying immediate reforms that will make our commonwealth more equitable for all Virginians.”
The product of months of negotiation and last-minute amendments, the final legislation is complex and, in some key areas, ambiguous about what will and won’t be allowed.
[Editor’s note: In North Carolina where even medical marijuana remains illegal, WRAL.com reports there is renewed momentum in the state legislature for change.]
New laws, new penalties
The final legislation makes possession of up to an ounce of marijuana legal for people 21 and older beginning July 1. Adults caught with more than an ounce but less than a pound will face a $25 fine. And adults caught with more than a pound can be charged with a felony punishable by between one and 10 years in prison and a fine of up to $250,000.
And while sales of the drug are illegal, the legislation permits gifting up to an ounce of the drug to any adult. (The provision explicitly prohibits transactions that have become common in Washington, D.C., where companies sell legal products at high prices that are delivered with what is described as a free gift of marijuana.)
People under the age of 21 caught with the drug face a $25 fine, but would also be required to enter a substance abuse treatment and education program.
Also illegal under the legislation: consuming the drug in public or offering it to people in public, as a gift or otherwise. First offenses are also punishable by a $25 fine, a second offense would add mandatory drug treatment and a third offense would constitute a Class 4 misdemeanor. And possession on the grounds of a public K-12 school while it’s open would constitute a Class 2 misdemeanor.
“This is not going to generate some ganja fest at Jiffy Lube pavilion out in the parking lot, because that is smoking in public,” said Sen. Scott Surovell, D-Fairfax. “Because just like you can’t drink in public, you can’t smoke in public under this.”
Open containers and cars
In an effort to address the difficulty of pursuing driving-under-the-influence charges, which unlike alcohol can’t be proven with breath or blood tests, the legislation also creates a presumption that a person has consumed marijuana if an “open container” is found in the passenger area of a vehicle.
But the legislation defines an open container as “any vessel containing marijuana except the originally sealed manufacturer’s container.”
With retail sales delayed until 2024, what does that mean for people transporting a legal amount of marijuana in a ziplock bag or other common container?
You should probably keep it in your trunk, said Jenn Michelle Pedini, executive director of Virginia NORML, the state chapter of the National Organization for the Reform Marijuana Laws.
“The considerations were based on retail cannabis, and that’s why you see these gaps in the code,” they said.
Claire Guthrie Gastañaga, executive director of the ACLU of Virginia, agreed. “That means marijuana in any other container other than a currently non-existent manufacturer’s container will be considered as being in an open container now and in the future,” she said.
Growing your own
Again, retail sales won’t begin until 2024, so for the next three years, the only legal way to obtain the drug will be growing your own or getting it as a gift from someone who does.
The law allows people to cultivate up to four plants per household, provided they aren’t visible from a public street and precautions are taken to prevent unauthorized access by minors — though the bill doesn’t specify what those precautions should entail.
The law requires each plant be tagged with the grower’s name, driver’s license or state identification number, and a notation that it is being grown for personal use.
People caught with more plants than legally allowed face escalating penalties, which rise from a $250 fine for between 4 and 10 plants to felony charges for more than 50 plants.
The legislation also prohibits manufacturing concentrate from home-grown marijuana.
Like the open-container rules, the home-grow provisions present some ambiguities. First, there’s no legal way to purchase seeds or cuttings, though they could be gifted under the law. Pedini said the state’s licensed medical growers faced a similar dilemma when their operations began last year, but noted they have nonetheless been able to obtain plants.
Second, the prospect of growing up to four plants is at odds with the possession limit of one ounce. As Sen. Bill Stanley, R-Franklin, noted, one plant could easily produce several times that amount.
“Are we not creating a criminal act by growing one plant?” he said.
The bill’s senate patron, Sen. Adam Ebbin, D-Alexandria, said he didn’t have a good answer, but doubted many would-be cultivators would successfully grow more than an ounce.
Advocates say that while the issue merits caution among people who choose to grow marijuana, they don’t think it will be a problem in practice.
Pedini said the language limiting possession to one ounce applies only to amounts held on a someone’s person or in public. “The legislative intent is to prohibit you from walking down the street with more than an ounce of it,” they said.
And Gastañaga said she believed the authority to grow four plants would override the possession limit. “So, if you are growing in your home and complying with the provisions governing home grow, and you are not out in public, then I think the one ounce limit doesn’t apply to what you have in your home,” she said.
Sealing past convictions
The legislation also provides for the automatic sealing of past misdemeanor marijuana convictions and creates a petition-based process to allow people convicted of more serious charges to clear their records.
However, because those efforts will require updating state computer systems as part of a broader expungement initiative, it’s unclear when they will go into effect.
Lawmakers discussed but delayed until next year a decision about allowing people currently serving jail and prison sentences related to the drug to petition a judge to be resentenced.
Retail sales and social equity
Throughout the legislative debate, lawmakers steadfastly maintained they did not want to rush into opening the legal marketplace, setting a 2024 date they say will give them plenty of time to establish new rules and regulations.
For now, they’ve put off decisions about what those rules might look like until next year. Outstanding questions include how licenses will be distributed and how much say local governments will have in where pot businesses locate.
They also declined to give permission to the state’s existing medical marijuana producers to begin retail sales early, worrying it would give the companies too much of a leg up when the marketplace opens.
The Democrats who carried the bills through the General Assembly have emphasized a regulatory program that will direct licenses to minority communities that faced disproportionate drug enforcement during prohibition, though again, those details will not be finalized until next year.
The final bill came close to delaying nearly all its provisions until 2024, but Gov. Ralph Northam sent the measure back to the legislature to speed the legalization timeline following an outcry by activists.
Those amendments briefly appeared to be imperiled in the Senate on Wednesday amid infighting by Democrats, but ultimately passed with Lt. Gov. Justin Fairfax (D) breaking a tie vote.
No Republicans voted for the bill. Some had voiced support for the measure, but said they opposed pro-union language inserted by Northam, though that amendment will not become effective unless it is approved again next year.
Other GOP lawmakers questioned the wisdom of abandoning the earlier version of the bill, calling Northam’s amendments a “trainwreck.”
“It’s because some activists want marijuana legalized,” said Del. Chris Head, R-Botetourt. “And they want it legalized now, consequences be damned.”
Democrats countered that legalization’s time had simply come.
“One of the reasons I support making it come into effect soon is if we don’t, and we have to wait another three years, I’ll be in my 80s before I can do legally what I was doing illegally in my 20s,” said Sen. Janet Howell, D-Fairfax.
Ned Oliver is a reporter for the Virginia Mercury, which first published this story. Mercury reporter Graham Moomaw contributed.