Enhanced Penalties for Certain Drug Offenses

Earlier this month D.C. voters passed Ballot Initiative 71, legalizing personal use and home cultivation of marijuana. In January, Congress will evaluate the bill as it does for all new D.C. laws. If Congress does not object, the new rules could go into effect early next year. For more on Ballot Initiative 71 and a summary of current Virginia and D.C. marijuana laws and penalties, see our recent blog post here.

This post will provide some additional information regarding circumstances that can lead to enhanced penalties for marijuana-related crimes. In addition, brief summaries of the rules regarding drug paraphernalia and civil forfeiture are included.

Increased Penalties for Subsequent Offenses

In Virginia, a second conviction for misdemeanor marijuana possession raises the maximum penalty from 30 days in jail and a $500 fine to 1 year in jail and a $2,500 fine. A third or subsequent felony conviction for a marijuana distribution or manufacturing offense carries a mandatory minimum sentence of 5 years and up to life in prison and a fine of up to $500,000. In the District, a second or subsequent conviction for a marijuana-related crime makes the offender eligible to receive double the penalty otherwise applicable.

Increased Penalties for Offenses Involving Minors

A marijuana-related crime involving a minor automatically increases the penalties. In Virginia, anyone 18 or older who knowingly sells less than one ounce of marijuana to a minor at least 3 years younger or causes a minor to distribute marijuana is eligible for a mandatory minimum sentence of 2 years and up to 50 years’ imprisonment. Selling more than once ounce of marijuana to a minor carries a mandatory minimum of 5 years in prison and up to 50 years.

Similarly, in the District, someone 21 or older who distributes marijuana to a minor is in for double the penalty. An adult who encourages a minor to distribute a controlled substance can be punished by up to 10 years in prison and a $10,000 fine. A second offense carries up to 20 years and up to $50,000.

Furthermore, drug crimes on or near certain locations such as schools, universities, playgrounds, and public places are punished more harshly. In Virginia, marijuana distribution in or within 1000 feet of these areas is a felony carrying a penalty of between 1 and 5 years in prison and a fine up to $100,000. A second or subsequent conviction for an offense involving more than one-half ounce of marijuana carries a mandatory minimum of 1 year imprisonment. In the District, an offense in what is known as a “drug-free zone” can lead to doubling the penalty otherwise applicable.

Paraphernalia

While the sale or advertisement of drug paraphernalia is illegal in Virginia, the prohibition against possession of drug paraphernalia is limited. A person convicted of selling or possessing with the intent to sell drug paraphernalia could be punished by up to 12 months in jail and a fine of up to $2,500. Simple possession, on the other hand, is prohibited only if the paraphernalia is a hypodermic syringe, needle or other instrument adapted for illegally administering controlled dangerous substances by injection. But any drug paraphernalia can be tested for drug residue, which can then lead to a possession charge.

In contrast, possession with the intent to use paraphernalia in the District is punishable by up to 30 days in jail and a fine of up to $100 while selling paraphernalia is punishable with up to 2 years and a fine of not more than $5,000. With the exception of expressly listed medical professionals, it is illegal in D.C. for a person to possess a hypodermic needle, hypodermic syringe, or other instrument that has on any trace of a controlled substance with intent to use it for administration of a controlled substance. Possession of a hypodermic needle offense is punishable by up to 180 days in jail and a fine of up to $1,000.

Forfeiture

In addition to criminal penalties, in both Virginia and D.C. law enforcement officers may seize all property—including currency and in some cases real property—that is used in substantial connection with or derived from the sale, possession with the intent to distribute, or the distribution of marijuana. Forfeiture is a civil penalty imposed in addition to the criminal penalties of jail time, probation, and fines.

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