The day long-awaited by many closet tokers has arrived in the Commonwealth of Virginia. Senate Bill 1406/House Bill 2312, approved by a majority of Virginia’s legislature, heralds in a new era—as of July 1, 2021, simple possession of nominal amounts of marijuana* and home grow operations for up to four (4) marijuana plants are legal in the state. But does this really mean weed is legal? Not so fast

There are a ton of resources already available that explain what you can do “legally” as of July 1, 2021 in the Commonwealth, like this guide from NORML. What I aim to do with this entry is to tell you what you still need to be worried about (sorry, I know I’m a drag…). This entry, like all my blog posts, is not legal advice. If you need legal advice, E-mail me, Call me at (804) 250-8911 or fill out the form available here.

Not to kill your buzz, but Virginia, while permitted to make its own rules, is still subject to a little thing commonly known as the supremacy clause. I can’t condense a whole constitutional law course into a blog post, so just take me on my word: this means constitutionally-valid federal laws take precedence over state laws. What effect does this have on the new Virginia law?

Well, federal law still classifies cannabis with higher than 0.3% THC as a Schedule I narcotic under the Controlled Substances Act. That means it’s illegal under federal law to possess an amount of cannabis (or a number of cannabis plants) that is not deemed criminal under Virginia’s new law. But I live in Virginia, how is this going to affect me?

The federal government can (and often does) enforce its criminal laws relative to marijuana on all the land it possesses or controls, and as relates to all marijuana that enters the U.S. from another country, and to marijuana which passes through the channels of interstate commerce. Tell me more…

Federal land abounds in the Commonwealth of Virginia—Uncle Sam holds title to over two million (2,000,000) acres in the Old Dominion. This includes all the U.S. Forest Service land, the U.S. National Parks (including Shenandoah National Park), the U.S. Fish and Wildlife Service, the U.S. Bureau of Land Management, and the Department of Defense. So next time you have business at Fort A.P. Hill, or you decide to take a nice long ride down Skyline Drive, or the Blue Ridge Parkway, you should leave the party at home. What if I do get caught with marijuana on federal land?

The penalties are pretty bad for marijuana possession, even for small amounts, at the federal level. For example, a first federal offense for possession of any amount of marijuana can mean a $1,000 penalty, and up to a year in jail. A second offense carries a mandatory minimum sentence of 15 days, and up to a $2,500 fine. A third offense (heaven forbid!) means a 90-day mandatory minimum and could mean up to a $5,000 fine!

The moral of the story here is that if you choose to take advantage of the change in Virginia’s law and develop and pursue an interest in recreational cannabis, proceed with caution. You can still get in trouble.

TL; DR: There is, as of July 1, 2021, no criminal penalty at the state level for marijuana possession for small amounts and home grow operations up to four plants, but federal law (which still treats marijuana as a Schedule I narcotic) still applies to federal lands in the Commonwealth.

*I use the words “marijuana” and “cannabis” interchangeably here. There’s probably a botanist or horticulturist that can explain why this is wrong, but I don’t have time to figure out how or why right now.

Notice: The content of this blog entry is not, and should not be construed as, legal advice. To the extent this blog entry is a legal advertisement, it originates with the Law Office of Thomas Bishop, 5606 Greendale Road, Suite C, Richmond, Virginia, licensed to practice law in the Commonwealth of Virginia.


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