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For a full discussion on defenses and requirements of proof related to marijuana and drug possession generally, go to our Drug Possession & Distribution page.  Below is a discussion on the decriminalization and legalization of personal use marijuana. 

What is legal?

It lawful to possess marijuana for personal use. That is to say, you do not possess the marijuana with the intent to sell, give, or distribute it to another. There is a rebuttable presumption (meaning assumed to be so unless the Commonwealth can prove otherwise) that one who possesses no more than one ounce of marijuana does so for personal use.

What is unlawful but not criminal, assuming personal use?

It is unlawful for a person under the age of 21 years to possess marijuana. To do so could result in being issued a citation and fined $25.00. It is also unlawful for a person to possess on his person or to possess in any public place more than one ounce of marijuana. This too could result in a fine of $25.00.

Home Cultivation

A person 21 years of age or older may cultivate up to four marijuana plants for personal use at their residence. This four plant limit applies to a residence, regardless of how many people live at the residence and regardless of whether they are related to each other or not. There are three requirements for home cultivation under Virginia law:

  1. No marijuana plant may be visible from a public way unless aircraft, binoculars or another optical aid is used. Bottom line: the plants must be discreet.
  2. You must take precautions to prevent unauthorized access by persons younger than 21 years of age. In practice, it seems unclear how one would accomplish this, other than to be discreet and try to secure the plant on your property and prevent access by anyone.
  3. Attach to each plant a legible tag that includes your name, driver's license number and a notation that the plant is being grown for personal use under Virginia law.

If you cultivate more than four plants, there are penalties. These penalties can include a civil penalty but can also be criminal acts punished as misdemeanors or a felony.

Adult Sharing

Adults may share marijuana and transfer it among themselves so long as both are 21 years of age or older and the amount shared does not exceed one ounce. However, there can be no consideration in exchange for the marijuana given. This means you cannot get something for the marijuana. Examples: marijuana cannot be given at the same time a reciprocal transaction between two people occurs, i.e. - marijuana given in exchange for a pair of sunglasses; marijuana cannot be given as a gift to you if you buy something from another nor can it be given by you if another buys something from you; marijuana cannot be given as a gift contingent upon a future transaction for goods or services. To violate the "Adult Sharing" exceptions is to commit a crime, which is discussed below.

What is illegal and criminal?

  • If you possess an ounce of marijuana or less (but not more than an ounce) there is a rebuttable presumption the marijuana is for your personal use - this presumption can be rebutted.  The issue to rebut - whether you possess the marijuana with the intent to distribute (PWID).  That remains illegal and a crime, a Class 1 Misdemeanor.  A rebuttable presumption in favor of a defendant, however, is very beneficial...the law presumes personal use which falls to the defendant's favor for amounts one ounce or less.
  • The presumption of possession for personal use does not exist for amounts in excess of one ounce - the Commonwealth would still have to prove beyond a reasonable you possessed with the intent to distribute to show a crime occurred.  This means that if you possessed several ounces, for example, there would not be a presumption of personal use.  PWID in that amount would be a Class 5 felony.  PWID of more than 5 pounds would be punishable as an unclassified felony of not less than 5 years but not more than 30 years confinement - no mandatory minimum, however.
  • Any actual distribution of marijuana, whatever the amount, is still illegal - a crime.  Distribution of an ounce or less would be Class 1 Misdemeanor; more than an ounce but not more than 5 pounds, a Class 5 Felony; any amount distributed in excess of 5 pounds, an unclassified felony described above.

"Adult Sharing" - a gift of an ounce or less without consideration - is permitted and does not violate the criminal law summarized above.

  • It is a Class 4 Misdemeanor (up to a $250 fine) to use or consume marijuana in a motor vehicle on the highways of the Commonwealth. It is illegal to consume marijuana in any public place or to offer marijuana to anther in any public place. While the first two offense are civil penalties ($25.00 fine), a third or subsequent offense is a Class 4 Misdemeanor. It is a Class 2 Misdemeanor (up to 6 months in jail and/or a fine of not more than $1,000.00) to possess or consume any marijuana on the grounds of any public school

The Odor of Marijuana

Under Virginia law, no police officer may stop, search, or seize any person, place, or thing solely on the basis of the odor of marijuana. Any evidence discovered or obtained as a result of an officer violating this rule of law, even if the person consented to the search, shall not be admissible in any trial or other proceeding.

To learn more about the Law of Possession and Defenses to Marijuana and Drug related charges, click here and go to our Drug, Possession & Distribution page.

If you have a matter that involves a marijuana criminal charge in Fairfax County, contact George Freeman today to discuss your case; he is an experienced Fairfax Criminal Lawyer dealing with misdemeanor and felony marijuana cases.  

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