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Marijuana Possession is a Civil Infraction in Virginia – Can I Smoke Now?

On July 1, 2020, the possession of marijuana becomes a civil infraction punishable by a maximum fine of $25. Some marijuana activists are celebrating this as a major victory and suggesting it’s effectively legalization. Some are asking does this means it is okay to smoke regularly or if I am charged can I just plead guilty and pay the fine? The answer to both questions is NO.

In the 2020 Regular Session, the General Assembly decriminalized all forms of marijuana possession set forth in § 18.2-250.1 of the Code of Virginia. The maximum penalty is a $25 fine plus court costs (at least $80 or more). Second offense marijuana possession is no longer a Class 1 Misdemeanor and your license can no longer be suspended for a marijuana possession conviction. Many people ask – so what’s the big deal?

First, marijuana possession is still a civil infraction and the sight or odor of possible marijuana can still probably be used as a predicate to search your person or vehicle although it will take some time for the courts to sort that out.

Second, while access to Virginia’s Central Criminal Records Exchange is limited and employers or colleges are prohibited from asking about marijuana convictions, a marijuana infraction is filed at the courthouse and with the charging local law enforcement office. Data brokers gather that data and sell it to background check services used by employers, insurance companies, and landlords so you can and will likely get asked about discrepancies between your answers and background check reports after the reports come back if there is a disconnect between your answer and the background check.

Third, these infractions still bear the hallmarks of a criminal infraction such as the need to prove guilt beyond a reasonable doubt and a fine so they are likely to be treated as misdemeanor convictions by the Federal Government for immigration purposes like deportations and will likely qualify as grounds to have Trusted Traveler Status denied or revoked – e.g. TSA Pre-Check or Global Entry. If you have reason to fear deportation or enjoy skipping the security lines, think twice.

Fourth, as of today, Virginia Law does not allow expungements when someone either is convicted or stipulates to guilt. Virginia’s statutory deferred disposition program typically requires such a stipulation so if you enter a disposition under § 18.2-251 of the Code of Virginia for a charge to be continued for dismissal upon completion of a program, you will still have a charge in the courthouse file for the rest of your life and until Virginia Law changes, it will be ineligible for expungement.

The bottom line – If you are convicted or enter a dismissal program for a marijuana infraction after July 1, you can still get searched, deported, lose a job, be denied entry into college, refused an apartment, fined, and a charge will stay on your record forever or until Virginia Law is changed.

The real difference will come when and if the Commonwealth of Virginia moves to legalization. The logistics of achieving that are much more complicated and will take some time for the legislature to work out, but it is under discussion. In the meantime, the practical effects of marijuana possession will not change much because of this law and if you are charged – hire a lawyer! Give us a call today at 703-251-5400. The law firm of Surovell Isaacs & Levy PLC are here to help.

Surovell Isaacs & Levy, PLC discusses a new law that makes marijuana possession a civil infraction in Virginia. Contact our office today to learn more.

Marijuana infraction

MARIJUANA PENALTIES

By: James Orlando, Senior Legislative Attorney

This report summarizes the authorized penalties in Connecticut law for various marijuana-related offenses, including (1) the unauthorized possession or sale of marijuana, (2) the use of drug paraphernalia in connection with marijuana, and (3) fraud related to the medical marijuana program. The report updates OLR report 2011-R-0489 .

Under Connecticut law, the unauthorized possession of less than Ѕ ounce of marijuana is not a crime, but is punishable by fines (and other penalties in certain circumstances). The unauthorized possession of Ѕ ounce or more is a misdemeanor, except certain repeat offenders may be subject to felony penalties.

The unauthorized sale of marijuana (including possession with intent to sell, manufacture, and related acts) is a felony, with specific penalties that vary based on certain factors such as the amount of the drug, where the act takes place, and whether the offender is drug-dependent. There are mandatory minimum prison terms in certain circumstances.

Specified acts involving drug paraphernalia and marijuana are infractions or misdemeanors, depending on the amount of marijuana involved. Certain fraudulent acts related to the medical marijuana program are also misdemeanors.

The tables below summarize the offenses and related penalties that apply to marijuana or other cannabis-type substances, which in some cases apply to other controlled substances as well. Please see the statutes for a complete description of the offenses and penalties.

The tables below generally do not include the collateral consequences that apply to certain drug convictions, such as restrictions on obtaining certain professional licenses. The report also does not address pretrial diversionary programs that may be available.

Under specified conditions, Connecticut law allows the possession and sale of marijuana for medical purposes. For information on the medical marijuana program, see the Department of Consumer Protection ‘ s website .

MARIJUANA-RELATED FINES AND CRIMINAL PENALTIES

Table 1: Marijuana Possession

Brief Description

Authorized Penalties

Possession of less than Ѕ oz. of marijuana

First offense: $150 fine

Subsequent offenses: $200 to $500 fine (third-time violators must attend drug education, at their own expense)

Violators follow the procedures the law sets for infractions (e.g., they can pay the fine by mail) ( CGS § 51-164n )

60-day suspension of the driver ‘ s license or nonresident operating privileges of anyone under age 21 who is convicted of a violation (if the person does not have a license, he or she is ineligible for one for 150 days after meeting all licensing requirements) ( CGS § 14-111e )

Burden of proof is preponderance of the evidence (rather than beyond a reasonable doubt) ( CGS § 51-164n(i) )

Possession of Ѕ oz. or more of marijuana

Class A misdemeanor, punishable by up to 1-year prison term,

up to a $2,000 fine, or both

Second offense: court must evaluate the defendant and may

suspend prosecution and order substance abuse treatment if the court determines that the person is drug dependent

Subsequent offenses: court may find the person to be a persistent offender for controlled substance possession, which is punishable by a class E felony prison sentence (i.e., up to 3 years)

Possession of Ѕ oz. or more of marijuana within 1,500 feet of the property comprising (1) an elementary or secondary school by someone who is not attending the school or (2) a licensed day care center identified as such by a sign posted in a conspicuous place

Class A misdemeanor

Court must sentence the person to a term of imprisonment and probation. The conditions of probation must include performing community service.

Table 2: Marijuana Sales and Related Offenses

Brief Description

Authorized Penalties

Sale, possession with intent to sell, or related actions involving any amount of marijuana

First offense: up to 7-year prison term, up to a $25,000 fine, or both

Subsequent offenses: up to 15-year prison term, up to a $100,000 fine, or both

Alternative sentence: up to 3-year indeterminate prison term with the possibility of conditional release by the correction commissioner ( CGS § 21a-277(d) )

Sale, possession with intent to sell, or related actions by a non-drug-dependent person of at least 1 kg. of marijuana

First offense: mandatory minimum 5- to 20-year prison term

Subsequent offenses: mandatory minimum 10- to 25-year prison term

Judge may suspend the mandatory minimum if, at the time of the offense, the person (1) was under age 18 or (2) had significantly impaired mental capacity

Judge may depart from the mandatory sentence under certain other circumstances (see below)*

Sale by a non-drug-dependent adult of any amount of marijuana to a minor at least two years younger

Mandatory 2-year prison term running consecutively to prison term imposed for the underlying crime

Sale, possession with intent to sell, or related actions involving any amount of marijuana within 1,500 feet of the property comprising (1) an elementary or secondary school, (2) a licensed day care center identified as such by a sign posted in a conspicuous place, or

(3) a public housing project

Mandatory 3-year prison term running consecutively to prison term imposed for the underlying crime

Judge may depart from this sentence under certain circumstances (see below)*

Hiring or persuading a minor to sell any amount of marijuana

Mandatory 3-year prison term running consecutively to prison term imposed for the underlying drug sale crime

* Judges may impose less than the mandatory minimum sentence when no one was hurt during the crime and the defendant (1) did not use or attempt or threaten to use physical force; (2) was unarmed; and (3) did not threaten to use or suggest that he or she had a firearm, other deadly weapon (e.g., a switchblade knife), or other instrument that could cause death or serious injury. Defendants must show good cause and can invoke these provisions only once. Judges must state at sentencing hearings their reasons for (1) imposing the sentence and (2) departing from the mandatory minimum ( CGS § 21a-283a ).

Table 3: Drug Paraphernalia

Brief Description

Authorized Penalties

Use, possess with intent to use, or deliver,

possess with intent to deliver, or manufacture

with intent to deliver drug paraphernalia in

connection with less than Ѕ oz. of marijuana

Infraction (punishable by a fine, a surcharge, and an additional fee based on the amount of the fine; the current total amount due for violating § 21a-267(d) is $136, per the Superior Court Infractions Schedule)

60-day suspension of the driver ‘ s license or nonresident

operating privileges of anyone under age 21 who is convicted

of this infraction (if the person does not have a license, he or

she is ineligible for one for 150 days after meeting all

Burden of proof is preponderance of the evidence (rather

than beyond a reasonable doubt) ( CGS § 51-164n(h) )

Use or possess with intent to use drug paraphernalia in connection with Ѕ oz. or more of marijuana or any amount of another controlled substance

Class C misdemeanor, punishable by up to 3 months in

prison, up to a $500 fine, or both

Deliver, possess with intent to deliver, or

manufacture with intent to deliver drug paraphernalia in connection with Ѕ oz. or more of marijuana

Class A misdemeanor, punishable by up to 1-year prison term, up to a $2,000 fine, or both

Commit the above acts in connection with Ѕ oz.

or more of marijuana within 1,500 feet of

the property comprising an elementary or

secondary school by someone who is not attending the school

Mandatory 1-year prison term running consecutively to prison

term imposed for the underlying crime

Judge may depart from this sentence under certain

circumstances (see below)*

Knowingly possessing drug paraphernalia in

drug factory situation

First offense: up to 2-year prison term, up to a $3,500 fine, or both

Subsequent offense: Class C felony, punishable by up to

10-year prison term, up to a $10,000 fine, or both

Hiring or persuading a minor to possess

drug paraphernalia in drug factory situation

Mandatory 3-year prison term running consecutively to prison

term imposed for the underlying crime

* Judges may impose less than the mandatory minimum sentence under the same circumstances as described above for certain drug sale offenses (see the footnote under Table 2).

Table 4: Fraud Related to Medical Marijuana Program

Brief Description

Authorized Penalties

Making a fraudulent representation to a law enforcement official of any fact or circumstance relating to medical marijuana use to avoid arrest or prosecution

Class C misdemeanor

Making a fraudulent representation to a law enforcement official of any fact or circumstance relating to the issuance, contents, or validity of a written certification for medical marijuana use

Marijuana infraction MARIJUANA PENALTIES By: James Orlando, Senior Legislative Attorney This report summarizes the authorized penalties in Connecticut law for various marijuana-related