By Hon. David Albo. Member Virginia House of Delegates 1994-2017. Chairman of House Courts of Justice Committee 2008-2017. Presently a practicing attorney in Northern Virignia
The short answer: Probably not totally legal, but decriminalization may be immanent with medical marijuana soon thereafter. This recent shift from no action on marijuana for decades to the possibility of decriminalization, medical marijuana, and perhaps total legalization, is all a result of recent politics. The Virginia General Assembly has been controlled by “law and order” Republicans for almost two decades. But, recent elections have resulted in the Democrats picking up at least 13 more seats in the Virginia House of Delegates, thus making the Republican – Democrat mix in the House and Senate nearly dead even. Democrats are generally more friendly to marijuana legalization, so I expect that at least de-criminalization will be passed in the near future. Following de-criminalization, I expect medical marijuana may soon thereafter be enacted.
The long answer: Believe it or not, medical marijuana has been legal in Virginia for decades. Many Virginia criminal lawyers don’t even realize this. The law which makes the possession and/or sale of marijuana a criminal offense has an exception for marijuana prescribed by a doctor.
§ 18.2-250.1. Possession of marijuana unlawful.
- 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 (§ 54.1-3400et seq.).
The reason that this existing exception has never resulted in legalize medical marijuana is because there is no way for a doctor to legally “prescribe” marijuana. Marijuana is a “Schedule 1” narcotic according to the FDA. Schedule 1 is for substances that have no beneficial use. (Note: Despite vast evidence that marijuana has beneficial effects, the FDA as recently as 2017 still refuses to re-classify marijuana.) Heroin is a Schedule 2 because it does have a legitimate medical usage. The opioids found in heroin can be used as a legitimate pain reliever. This sets up a ludicrous situation where a doctor could prescribe very dangerous opioids, but could not prescribe relatively harmless Marijuana. Many Virginia legislators have tried to tackle this problem. Over the years, there have been many attempts to do everything from total legalization to minor tweaks of VA Code §18.104.22.168 (For example, the easiest way to legalize medical marijuana would be to merely strike the word “prescribe” in §18.2-250.1, and use a substitute term, such as dispense.) But no matter what the bill looked like, the House Courts of Justice Committee controlled by the Republicans (14 Republicans to 8 Democrats) killed it.
Not until two years ago have any changes to Virginia’s Marijuana laws occurred. In 2015, my bill allowed a derivative of marijuana (CBD and THCa oils) to be allowed for people suffering intractable epilepsy. This was because evidence presented to the General Assembly showed that these oils reduced the number of seizures suffered by people with intractable epilepsy and that these oils are non-hallucinogenic. The story presented by the victims of intractable epilepsy melted the hearts of even the most “law and order” Republicans. These Republican members stated that as long as these oils were “non-hallucinogenic,” they would agree to make them available to people who need them. Thus, as long as a significant Republican majority exists, the likelihood of getting marijuana (a hallucinogenic) legalized at any level, is highly unlikely…. And then, Tuesday November 7th a monumental election happened. Because of the Anti-Trump effect, the Republican Majority of 64 seats to 36 seats was reduced to 51. Since Democrats are more sympathetic to legalization of marijuana, there is now a much greater likelihood that some bills will pass. Here are the possibilities in order of likelihood:
- Expansion of CBD and THCa Oil to Diseases Beyond Epilepsy (e.g. Chron’s disease, pain, cancer.) The Courts of Justice Committee is looking for medical evidence of diseases that can be treated or alleviated through the use of CBD and THCa oil. If there is medical evidence, then I expect the committee will agree to expand the availability of these oils to medical conditions beyond epilepsy, and a bill will advance to the House floor for a vote. In the past, most all bills which even hinted at reducing penalties for marijuana, died in this committee.
- Decriminalization of Marijuana. (This is not legalization. Marijuana would still not be legal, but the punishment would be a civil fine so that a conviction would not create a criminal record or the possibility of jail.) The Virginia State Crime Commission is looking into decriminalization, and an extremely influential State Senator has announced his intent on filing a bill to de-criminalize marijuana. For a full discussion of decriminalization, consult the Crime Commission report: http://vscc.virginia.gov/VSCC_FINAL_Decrim%20Marj%20Present.pdf
- Legalization of Marijuana for medical purposes. (aka “medical marijuana”) This will require major revisions to the code and a new bureaucracy to oversee the issuance of medical marijuana prescriptions and distribution. Thus, this will take longer to enact.
- Legalization of Marijuana. In my opinion, this may happen years down the road, but I would expect that the Commonwealth would first see how decriminalization worked and then move to medical marijuana. Following a trial on medical marijuana, total legalization may occur, especially if taxation of marijuana would yield a windfall to the state budget.