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.
Posted in: Criminal Law