Marijuana in Washington, D.C., and Virginia

At the polls on November 4, D.C. residents will decide whether to legalize marijuana use in the District. Initiative 71, as it is known, would legalize the possession of up to two ounces of marijuana for personal use. It would also permit D.C. residents to grow up to six cannabis plants–no more than three of which can be mature–and give up to an ounce of marijuana to another adult without payment. The sale and use of marijuana-related drug paraphernalia would also be legal. (Remember, however, that even if the ballot initiative passes, it must first go to Congress for a mandatory review period based on D.C.’s unique federal status.)

The initiative comes on the heels of an already significant change in D.C.’s marijuana possession law. On July 17, 2014, the law in D.C. changed so that individuals can possess or give to another adult up to one ounce of marijuana. Marijuana-related paraphernalia is also permitted as long as it is associated with no more than one ounce of marijuana. The visible use of marijuana is still illegal (similar to alcohol open-container laws) and an offender may be fined $25. In addition, refusal to provide an officer with one’s real name and address when being issued a fine can lead to arrest, as can smoking or consuming marijuana in a public space, selling any amount of marijuana, or driving while under the influence of marijuana. Finally, federal law enforcement officers may still make arrests for marijuana possession in the District.

Regardless of whether Initiative 71 succeeds, there are many marijuana-related laws and accompanying penalties in D.C. and in Virginia that are unlikely to change.

Possession

It is illegal in Virginia to knowingly or intentionally possess marijuana unless it was obtained pursuant to a valid medical prescription. A person convicted of possessing marijuana may be punished by up to 30 days in jail and a fine of up to $500. A second or subsequent marijuana possession conviction is punishable by up to one year in jail and a fine of up to $2,500.

In the District, as noted above, possession or transfer of up to one ounce of marijuana is a civil violation punishable by a $25 fine.  Unless marijuana was obtained through a doctor’s prescription, intentional or knowing possession of more than one ounce of marijuana carries a penalty of up to 180 days in jail and a fine up to $1,000.

Both Virginia and the D.C. have a probation program for first-time drug offenders. This program allows a judge, with the consent of the accused, to defer an adjudication of guilt in favor of probation and other conditions, such as substance abuse assessment, successful completion of treatment and education programs, drug and alcohol testing, and community service. If the accused successfully completes the probation program the charges will be dismissed. If the accused violates any conditions of probation, however, the judge may enter an adjudication of guilt and sentence the individual accordingly.

Possession with Intent to Distribute, Distribution, and Manufacturing

The penalties become more serious for a marijuana distribution or manufacturing offense. In Virginia, distribution crimes include not only the sale, distribution, or giving of marijuana, but also the possession with intent to sell, distribute, or give it. Depending upon the circumstances surrounding an arrest for marijuana possession, such as the quantity of the drug, how the drug was packaged, whether and what type of paraphernalia is present, whether there was an unusually large amount of money present—among other factors—a person could be charged with a distribution crime.

The penalty for a marijuana distribution crime depends upon the quantity of marijuana involved. A distribution crime involving one-half an ounce or less of marijuana is punishable by up to one year in jail and a fine of up to $2,500. If more than one-half ounce but less than 5 pounds is involved it is a felony punishable by up to 10 years in prison. If more than 5 pounds is involved the punishment can be anywhere from 5 to 30 years in prison and a fine of up to $10,000, which is the same penalty as a manufacturing offense, including the intent to manufacture.

If the accused proves that he distributed the marijuana only as an accommodation to another individual and not with intent to profit or induce addiction, then it is a Class 1 misdemeanor.

In D.C., the penalty for distribution, manufacture, or possession with intent to distribute is a prison term of up to 5 years and a fine of not more than $50,000. A first-time offender in a distribution crime involving one-half pound or less of marijuana, may be imprisoned for not more than 180 days and fined not more than $1000. In addition, in both Virginia and the District, first-time distribution offenders may be able to take advantage of the probation program.

There are increased penalties for subsequent offenses or offenses that involve certain elements such as a weapon or a minor. There are also numerous caveats and exceptions to the laws discussed above. Some of these issues will be addressed in a future post.

Finally, even if the possession of a small amount of marijuana becomes legal in the District, many marijuana laws are here to stay. The marijuana laws and corresponding penalties in Virginia and the District are multi-faceted and can be confusing. Anyone arrested for an offense involving marijuana or any other controlled substance should consult with an attorney immediately. Consultation is particularly important in evaluating potential constitutional objections to the search leading to discovery of any drugs as well as any other potential defense strategies that may lead to a dismissal or reduction in charges.

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