New Virginia Law on Possession of CBD Oil

Marijuana has been illegal in Virginia for as long as anyone can remember.  Even with other states legalized medical marijuana, decriminalized marijuana or even legalized it, Virginia said “No” — until recent years.  In about 2015, as a Delegate in the Virginia House of Delegates (Note: In addition to being a Criminal Lawyer Fairfax Virginia since 1988, I served in the legislature from 1994-2017), I made CBD Oil (a derivative of Marijuana) available in Virginia.  This year, 2020, the legislature decriminalized possession of small amounts of marijuana.  In the future, I predict legalization for medical marijuana and eventually perhaps, even full legalization. When I made CBD Oil available, I did it by passing a law which stated that anyone who was caught with CBD (or THCa oil) who had intractable epilepsy and who had a written certification from a doctor that the oil would aid in the treatment of either themselves or their child, can show the written certification as “an affirmative” defense.  In practice, if a person had the written certification, a Prosecutor would just drop the charge.  After that law was put in place, the legislature expanded it to anyone with an illness, not just epilepsy.  This method of an affirmative defense was cumbersome.  It really did not make CBD legal, it just said that if you were caught with it and you had a doctor’s written certification, the Prosecutor or Court would drop the charge.  Given that marijuana was actually decriminalized (e.g. not made legal but the punishment is a mere fine and no jail – just like a traffic ticket), the legislature decided to get rid of this cumbersome CBD law and give a Criminal Lawyer Fairfax Virginia an easier way to assert the CBD / THCa Oil defense. Here is the new law.  Italics is new language and strike throughs indicate language that is to be removed. § 18.2-250.1. Possession of marijuana unlawful. A. It is unlawful for any person knowingly or intentionally to possess marijuana unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act (§ 54.1-3400 et seq.). Excuse the interruption into your reading of the statute, but this is interesting.  Did you notice that existing law says “unless the substance was obtained directly from, or pursuant to, a valid prescription…”  If you think, “Wait? Has medical marijuana always been legal in Virginia?”  And the answer is “Yes.”  The reason medical marijuana never developed is that marijuana is a schedule 1 narcotic.  Schedule 1 drugs cannot be given by prescription.  Opioids are schedule 2.  They are way more dangerous than marijuana and can be given by prescription.  So, while a rookie Criminal Lawyer Fairfax Virginia will tell you that medical marijuana is not legal, the truth is that it is technically legal, but that you can’t get it because you can’t get a prescription for medical marijuana.  The bottom line is that until marijuana is rescheduled by the FDA to a schedule 2, current law won’t allow medical marijuana in Virginia. Now, back to the new law. Upon the prosecution of a person for violation of this section, ownership or occupancy of the premises or vehicle upon or in which marijuana was found shall not create a presumption that such person either knowingly or intentionally possessed such marijuana. Any person who violates this section is guilty of a misdemeanor and shall be confined in jail not more than 30 days and fined not more than $500, either or both; any person, upon a second or subsequent conviction of a violation of this section, is guilty of a Class 1 misdemeanor. B. The provisions of this section shall not apply to members of state, federal, county, city, or town law-enforcement agencies, jail officers, or correctional officers, as defined in § 53.1-1, certified as handlers of dogs trained in the detection of controlled substances when possession of marijuana is necessary for the performance of their duties. C. In any prosecution under The provisions of this section involving marijuana in the form of cannabidiol oil or THC-A oil as those terms are defined in § 54.1-3408.3, it shall be an affirmative defense that the individual possessed shall not apply to any person who possesses such oil pursuant to a valid written certification issued by a practitioner in the course of his professional practice pursuant to § 54.1-3408.3 for treatment or to alleviate the symptoms of (i) the individual’s person’s diagnosed condition or disease, (ii) if such individual person is the parent or legal guardian of a minor or of an incapacitated adult as defined in § 18.2-369, such minor’s or incapacitated adult’s diagnosed condition or disease, or (iii) if such individual person has been designated as a registered agent pursuant to § 54.1-3408.3, the diagnosed condition or disease of his principal or, if the principal is the parent or legal guardian of a minor or of an incapacitated adult as defined in § 18.2-369, such minor’s or incapacitated adult’s diagnosed condition or disease. If the individual files the valid written certification with the court at least 10 days prior to trial and causes a copy of such written certification to be delivered to the attorney for the Commonwealth, such written certification shall be prima facie evidence that such oil was possessed pursuant to a valid written certification. So as you can see, the new law allows a Criminal Lawyer Fairfax Virginia just to say that the possession of Marijuana laws don’t apply to people who possess oil AND who have a doctor’s written certification.  A much better way to do it. For more information, please contact the office of Dave Albo – Attorney today.