General Assembly green lights marijuana decriminalization

March 16, 2020

The General Assembly has officially voted to decriminalize the possession of small amounts of marijuana.  After two months of amendments, hearings, and floor debate, Senator Adam Ebbin’s SB 2 finally passed both the Senate and House of Delegates on March 8, and will now be sent to Governor Ralph Northam for consideration.

Under current law in Virginia, possession of a half-ounce or less of marijuana is punishable by a fine of $500 and up to 30 days in jail for the first offense, and subsequent offenses are considered class 1 misdemeanors.  Furthermore, possession of derivative products such as hash or concentrated oils is punishable as a felony.

Under SB 2 (Ebbin), possession of up to one ounce of marijuana – either in plant form or in products derived from it – will still be illegal but will no longer be punishable with criminal penalties.  Instead, it will only be punishable by a civil fine of $25.  Persons who are charged with a first offense of possession of one ounce of more are eligible to be placed on probation.  Additionally, SB 2 seals records of past and future convictions and prohibits employers and educational institutes from inquiring about such violations (except for law enforcement agencies).

Advocates for decriminalization argued that this legislation will greatly reduce arrest records and will help prevent unnecessary or overly harsh criminal convictions. Recent data shows that in 2018, arrests for marijuana possession reached its highest level in over 20 years.  A recent Virginia Mercury article revealed that law enforcement agencies reported approximately 29,000 marijuana-related arrests in 2018, up 3.5 percent from 2017.

In recent years, as similar decriminalization efforts have stalled in the General Assembly, some local Commonwealth’s Attorneys – as well as candidates for that office – have announced that they will no longer prosecute simple possession cases.  While the legality of this practice of discretionary prosecution has been called into question and legally challenged, Senator Ebbin’s bill effectively renders the debate moot.

While SB 2 earned fairly broad, bipartisan support in both chambers, there were some lawmakers who didn’t think this bill went far enough and instead pushed for full legalization.  As a result, Senator Ebbin’s bill was amended to direct the Secretaries of Agriculture and Forestry, Finance, Health and Human Resources, and Public Safety and Homeland Security to convene a work group to study the impact on the Commonwealth of legalizing the sale and personal use of marijuana.

This new workgroup is tasked with reviewing the legal and regulatory frameworks that have been established in states that have legalized the sale and personal use of marijuana and is directed to examine not merely the feasibility of legalizing marijuana, but also the potential revenue impact of legalization on the Commonwealth, the legal and regulatory framework necessary to successfully implement legalization in the Commonwealth, and the health effects of marijuana use.  The work group is required to report its findings to the Governor and the General Assembly no later than November 30, 2020, which provides enough time to prepare for possible legislation for 2021.

VACo Contact: Chris McDonald, Esq.

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