Episode 5: Marijuana’s Legalization in Virginia.
Join us today on our Hot Topic about marijuana being legalized here in the Commonwealth of Virginia.
Welcome to What to do when a podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss what to do when, and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.
Jackie Critzer 0:29
Welcome to another episode of what to do when a podcast what we call the What To Do When… Dummies Guide to the Legalverse here at Critzer Cardani in Richmond, Virginia. So today, we’ve got well, well works with us here at the firm and Will’s got kind of Hot Topic, really in the news and pretty well spreading nationwide, I think, is that right?
Will Smith III 0:50
Yeah, absolutely. It’s a trend that’s going on all over the place, and it is the legalization of marijuana. And here in Virginia, you know, it was decriminalized a number of years ago. But as of July 1 of last year, 2021. Possession is legal now, for anybody over the age of 21. So, it has been, I think, a pretty successful measure so far. But there’s some things I think people need to know, you know, when when going out and deciding to, you know, indulge in the use of marijuana.
Jackie Critzer 1:27
Well, before you start there, can I just have a question? We hear a lot about the legalization of it per state, but not about the legalization on a federal level. Is there a difference? Does it matter if a Colorado is legalized, but in Virginia now, too, but the federal rules say it’s not legal? I mean, is there?
Will Smith III 1:46
Well, it’s so it’s such a funny thing, because I feel like, you know, back when it was legalized in California, by their state law, you know, they had all these dispensaries that were opening, but they were being raided by the by the DEA by the Feds. So, even though it’s still not legalized on a federal level, most federal agents and agencies aren’t really, you know, trying to interfere with the rights of people when they’re in their state laws that have been passed all over the country. So technically speaking, yeah, you’re still in violation of federal law, you know, when you’re in possession and when you use. But, you know, as far as our state is concerned, you’re fine to go.
Jackie Critzer 2:25
Doesn’t really make it clear, I suppose. But for today’s purposes, we’re going to talk about in Virginia, right? Yes. So where are we at? What’s the status of the law today.
Will Smith III 2:34
So, as I said, you know, as of July 1 2021, anyone over the age over the age of 21, is able to be in possession of up to one ounce of marijuana. That was a change from the previous law where, you know, if you were in possession, it could be a class, one misdemeanor, could be a class five felony, it could be anything. But we had the law change, so that anybody that’s in possession, and, you know, using marijuana, privately, is not really going to be, you know, prosecuted or charged with any crime. So there are a couple of different mean, there’s, as far as legalization is concerned, I mean, that’s the recreational use. So I’m really anybody that’s over the age of 21, can be in possession of up to one ounce of marijuana, they can also cultivate up to four plants at home, per person, four plants per person, per person, per household. So it’s only your primary residence, so don’t go and, you know, start growing at your, your rental properties, you know, all over the city. Because in that case, you know, you could be in violation of the law. But if you, you know, have four plants at home, and they’re properly tagged and identify their identifiable through you, then you’re fine to have, you know, those plants there. You want me to talk about medical marijuana at all, or is that because of the word something that
Jackie Critzer 4:00
I have a question about? You said private use, and in my mind, I feel like private means in your home, but what does private mean, under the law as we know it today,
Will Smith III 4:10
Right. I mean, I mean, private use is really just anything that’s not public. And so mean, public can be anything that is, you know, you’re out on the street and you’re smoking or, you know, you could still be on like your front porch and be in violation, you know, so anything that is in public view would be considered public use. If you are in your home and your backyard, you know, someplace that you know, it’s not you know, easily recognize that, you know, you’re indulging in the use of marijuana. That’s going to be a fine thing to do.
Jackie Critzer 4:41
So not the car.
Will Smith III 4:43
Don’t smoke in your car. No, and I have some things to tell you about that a little bit later.
Jackie Critzer 4:46
Okay. Circle back to being in the car later. Very good. Alright, so sure. I mean, Medical Man, I guess that’s a different right. Is it called a red card or something? I don’t know much about it, but…
Will Smith III 4:55
I always thought it was a green card right? When it makes sense, but I I don’t know exactly what it’s called, but um, anybody who’s over the age of 21, you know, who has been diagnosed by a doctor with, you know, a medical disease or condition that would benefit from the use of marijuana, they can write a prescription, just like any other medication. The thing for that, that people need to be aware of is that you can get up to four ounces a month, from a private dispensary, you can also still have the same requirement in place of having four plants, so you can still grow four plants at your house for medical use, the same way as somebody can do for personal recreational use now, so they haven’t added anything, can’t all of a sudden grow 8 plants now just because you had your medical card, and now we’re also trying to grow for recreational purposes, that makes sense. But um, you know, you have the ability to, you know, grow the same way as somebody trying to, you know, use it on a recreational basis. And as long as you have that medical card, there are, you know, dispensaries. I mean, they’re a couple here in Richmond, you know, a couple of dispensaries here in Richmond that had been open for a little over a year that have been able to operate by following all the rules and regulations that have been put in place to sell to people that have their medical card.
Jackie Critzer 6:18
What sort of issues are you seeing? I mean, you, we didn’t talk much about what you do, but from a criminal defense standpoint, the change in the law, so people can now be in possession of up to an ounce, and they can smoke in private, we’ve talked about that. But what sort of issues are you seeing with the changes in the law now, as a criminal defense attorney?
Will Smith III 6:40
Well, I think that a couple of things, one of those is the, you know, if you’re in possession of more than a certain amount more than an ounce, and there’s no presumption necessarily that you know, you have it for distribution purposes, or sale or manufacture. But people that I’ve represented, have had, you know, up to a couple pounds, that they had been stopped with, and based on the way that it was packaged, or the way that, you know, other paraphernalia was present, you know, had been charged with distribution. And so distribution is still distribution, the way that it always was, you know, if you’re trying to sell marijuana and sell it for, you know, sell it for a profit, you’re still, you know, putting yourself at risk of some pretty hefty prison sentences and felony convictions. So that’s one thing I’m seeing and the other is people that are driving under the influence. So are our DUI laws. People think the DUIs just cover alcohol, but I guess with the legalization of marijuana, you know, they’ve, well, they’re starting to, you know, realize that driving impaired under THC can be similar to that of the use of driving under the influence of alcohol. So people that you know, smoke and go drive and think, Well, I don’t feel like I’m drunk, right? Or I don’t feel like any more impaired, but I am, you know, maybe moving a little bit slower, could still be subject to a DUI. So that’s the other thing that I think people need to be aware of that if you’re going to use, it’s probably best not to drive. And, you know, as we already said, you know, you shouldn’t be driving and smoking or you know, eating your edibles or whatever it is you’re doing. But that’s, you know, people need to know that, you know, if you if you’re using and you know, you’re impaired, you feel a little bit different in any way, it’s probably safe to stay off the road.
Jackie Critzer 8:34
And I mean, that goes for any substance, whether it’s prescription medication.
Will Smith III 8:39
Oh, certainly. Yeah.
Jackie Critzer 8:40
Because am I right, you can get a DUI for even being under the influence of prescription medication.
Will Smith III 8:46
Right. I mean, most prescription medication that causes drowsiness or something has that, that warning, you know, don’t operate heavy machinery. In I think that, you know, the same goes for for a marijuana prescription or or marijuana that you’re using on a recreational basis. So any any impaired driving, you know, doesn’t mean that your blood alcohol content has to be a certain level. If it is judged by an officer that you know, you’re driving impaired in any way, shape or form, they can still charge you under the same code section as you would for where for an alcohol DUI.
Jackie Critzer 9:19
So if, under when someone gets pulled over for a DUI, there’s a breathalyzer there’s the sobriety tests, the roadside sobriety tests, and not that we’re talking about that today. But there are things that the police officer or state trooper or whatever is doing to determine your level of intoxication. Are you seeing those same sorts of tests happening on the marijuana?
Will Smith III 9:43
So right now, we don’t have or at least our state police and our local police don’t have any special tests different than what they already do for you know, they stop somebody in suspicion of DUI or DUI for alcohol. So, you know, your note your normal field sobriety tests, you know, nine step walk in turn or you know, saying the alphabet or counting or whatever it is, or the same test they’re using. But one of the things that, you know, that I’ve seen and that I’ve been reading is that alcohol affects, you know, certain functions a lot differently than marijuana does. So these tests that they’re doing, if you don’t, if you’re not also under the influence of alcohol, or some other type of like, prescription strong prescription, the signs of impairment really aren’t going to be the same way. Additionally, you know, when you have an alcohol or, you know, suspicion of DUI, alcohol related DUI, you know, there’s a, there’s a breath test that they give you. Well, we don’t have a certified breath test for marijuana yet in the state of Virginia. So it’s something that I know that, you know, is big? Oh, yeah, absolutely. I think that if he something that, you know, they’re looking into introducing to our, you know, police in the way that they conduct these, these, you know, roadside tests. But as of right now, we don’t have anything in place that detects marijuana, you know, in your system, other than you could get a blood draw. I did have that particular case where a client who was under the influence of alcohol did a field sobriety test, didn’t consent to a breath test, had a blood draw. And so as a result of his blood draw, even though his, you know, his blood alcohol content was below the legal limit, he had THC in his system. And so, you know, that they use that as the basis for the DUI that he was ultimately charged with. But because of the way that THC is processed by everybody differently, it it’s really hard to tell if somebody is under the influence of it, or if it’s just lingering in their system.
Jackie Critzer 11:58
You know, we’ve we’ve used a drug professional, really someone who comes to court and does drug tests, administers hair follicle tests, and she does urine screens and, and those sorts of things. And hopefully, we can invite her to do a podcast in the future specifically about the metabolites in these different drugs and how they come up. And what she’s really looking forward to doing these tests. But I think a question and maybe best for her, but if you’re beginning your blood drawn, following an arrest or roadside arrest, and they see THC in your system, I mean, isn’t it fair to say THC could have been there from yesterday or last week? Yeah, depending on your level of use?
Will Smith III 12:39
Yeah, there’s no, because of the way that everybody’s body metabolizes THC differently, there isn’t a baseline to work from. So when you’re looking at the parts per million of THC present in your in your system, you know, somebody could, you know, metabolize it at a rate, you know, a lot faster than somebody else. And so they can’t really pinpoint whether or not somebody used four hours ago, or if they used four or five days ago, okay, so because of, you know, that gray area right now, and not being able to or not having any tests, you know, available that ultimately say, Hey, this is something this is somebody who was clearly impaired by, you know, the use of marijuana recently, and they shouldn’t have been driving. You know, there’s a little bit of wiggle room, I guess you could say, in determining whether or not that person was impaired as a result of using THC.
Jackie Critzer 13:33
Well, in in just because they don’t have a blood test that is proof beyond reasonable doubt. Right? That doesn’t mean that they weren’t watching your drive, and they weren’t watching you maneuver in some way that drew their attention.
Will Smith III 13:46
Absolutely. And so I mean, that’s, it goes back to, you know, the way that DUI laws written is that, if you’re under the influence of alcohol, or any other self administered intoxicants, or any other drugs, whether they’re legal or not, whether it’s a valid prescription or not, if you’re, observed by a police officer swerving or you know, running red lights, or, running through stop signs, things like that, that would indicate that you do not have your full capacity to operate a motor vehicle, then, yeah, they will ultimately use that information against you in court.
Jackie Critzer 14:18
So what happens if, you know, now we’re in Virginia, somebody purchased their one ounce or less, and they’re driving and well, now they’ve gone into West Virginia, or they’ve gone into North Carolina, and they say, Hey, wait a minute, I came from a state where it’s legal. Have you encountered that and without the unauthorized practice of law into a jurisdiction where you don’t practice? Have you heard about that? Have you seen any cases like that?
Will Smith III 14:41
So I, I, like you’re saying, I don’t know exactly what the law is in West Virginia or Maryland or North Carolina or any other place around us but you know, people it’s supposed to be a federal offense right? If you’re if you’re trafficking drugs across state lines and marijuana again, still an illegal substance under our federal laws. People that I’ve heard or talked to, that have been stopped in other states and have been cited for possession of marijuana are still being charged or given a civil penalty the same way that our law used to be, regardless of kind of where they got it from. I mean, I don’t think that they’re really asking a lot of, you know, sourcing questions, you know, where somebody got it from, you know, who Who’s your supplier, but, you know, if they’re, as long as they’re not, you know, exceeding whatever that state’s law is, as far as you know, going from simple possession to distribution. I don’t think that they’re being, you know, arrested on the spot. More than likely, it’s kind of like a traffic ticket, at least in the people I’ve talked to that have been stopping in south, south North Carolina, you know, had been issued just summons, not arresting documents, and been, you know, as to show up in court, I think, and, you know, those jurisdictions, were still criminalized, you get stopped, and they’ll impose whatever penalties they that their their state has,
Jackie Critzer 16:01
It just doesn’t matter where you were coming from.
Will Smith III 16:02
No, it doesn’t matter at all.
Jackie Critzer 16:03
I like the way you said that they’re not asking a lot of sourcing questions, that’s perfect. Well, Will – tell our listeners and our followers, why they should they call you and hire you, should they be faced with some sort of charge involving either a DUI or marijuana or any of those things?
Will Smith III 16:21
Well, I think that, this is a topic that I’ve, you and I’ve talked about this before, before I even went to law school, I was at a trial. When I worked at the clerk’s office in one of these local jurisdictions, and there was a trial going on, that was regarding the distribution of marijuana. A couple of guys were charged with this, and it was about a week long trial. And I learned a lot of information about, strains of marijuana and the effect they have on people, and what parts of the plants you can actually consume and what parts you just kind of, just leftover after, these things are processed. And so I, I’ve continued to follow the laws from different states. And now, the changes that we’ve had here, where I’m not as well versed on this as probably anybody else that you’ll find. That being said, when we’re looking at the DUI laws, possession with intent to distribute laws, there is, there are plenty of ways to be able to fight these charges, to avoid a conviction of a misdemeanor or a felony. Possibly even to be able to get reduced to something that is more of a civil penalty, or no conviction at all. So with, you know, I think that based on, you know, the amount of time and energy and in research I’ve done, regarding this this topic, there’s really probably not many people, you’ll find that, that know a whole lot more than me. And so, I’ll also say that, we’re talking about our toxicologists – I can’t tell you how many times I’ve spoken to her about other cases. Whether it be a criminal case, or a family law case, where somebody has been accused of, using marijuana or being under the influence of marijuana. And so learning from her, and getting sources from her, has definitely helped develop my understanding of this of this particular subject area.
Jackie Critzer 18:17
Very good. And we’re not trying to be secretive. We don’t have her permission to use her name. Although I feel certain we could get it. We don’t have her permission, we don’t have permission. So anything else that you want to leave our listeners with?
Will Smith III 18:29
There’s something else I want to add, if that’s all right. One thing about the possession of marijuana that is new to our law, is the is the sharing of marijuana. And so I know this because I’ve seen it on or at least people have told me I haven’t actually haven’t personally seen it. But people have told me about different social media I guess sites or you know, accounts where you can you know, order a t shirt right or order some stickers or order a cookie. And as a as a gift for ordering that whatever that thing is, they’ll bring you some marijuana of your choosing as well. So with that, that’s considered like sharing right. But under our law in the state if you are being compensated for it in any way for the you know, distribution of marijuana, you can ultimately be be charged under the federal recent under federal felony law. So class five Felony or class three felony if you’re if you’re selling in any way to make a profit. The one exception to that right is that people who are growing their own plants, in our sharing, you know, whatever, they’ve whatever they’ve grown, right, whatever their final product is, they’ve grown as long as they’re sharing it with adults who are over the age of 21. And don’t and don’t make any any money off of it. They are able to share between one another. Yeah, I’ve heard on the radio not long ago about like, a seed meet up somewhere in the city where people were coming with their seeds, and they’re just exchanging their seeds not making any money off of it, but they’re just sharing, you know, between adults. So, you know, if you have a friend who has grown marijuana, and he wants to say, Hey, you want to see how how, you know, how my, how my plant does? As long as you don’t purchase it from them, you’re fine to take it that way. You know, so last thing I want to add is that, you know, the recreational use is fine in the state of Virginia. The problem that we kind of have is there no dispensaries that that will sell on recreational basis, and it won’t be that way until 2024. Okay, so right now, the only way to technically, legally purchase marijuana is with a medical marijuana license. So, you know, if you were trying to obtain it any other way, it’s still it’s still a problem. It’s still really a problem. So I haven’t heard anything, when people getting busted for buying marijuana, you know, recently because of the way they’ve relaxed the laws, but it’s something to think about, you know, some certainly something for people to be aware of.
Jackie Critzer 21:07
So that is interesting, because I have family in Colorado, and the laws have changed significantly. I want to save since 2014 and became legal and I go and visit my family there. And you can see the dispensaries right. I mean, they’re clearly identified or they’re not always in a bad part of town, like most people might think sometimes they’re in just regular old neighborhoods, right. But we don’t have that in Virginia. Did they approve it in Virginia starting in 2024.
Will Smith III 21:33
Starting in 2024, the commercial and retail sale of marijuana will be legal for anybody so anybody over the age of 21 can go and dispensary and purchase. There are a handful of you know, these dispensaries. There’s actually one. I don’t know if you’ve seen it here right here in Short Pump. That’s just recently opened up. But that one is specifically for people that have their their medical marijuana card. But that is one of the things that we are. I think there are a lot of things that they’re trying to figure out, or legislators trying to figure out as far as the regulations and how you know how these things gonna be text and all that good stuff that you know, they’re still trying to work out. But coming I think January 2024, is when you’ll be able to purchase legally purchase for recreational use.
Jackie Critzer 22:18
So unless you’re going your own you can’t buy it from anyone legally without a medical marijuana card in the Commonwealth of Virginia.
Will Smith III 22:25
That’s correct. So it’s interesting point, you know, how’d you get it?
Jackie Critzer 22:31
The sourcing question. Exactly. Well, great. This is this has been informative. I appreciate you taking the time to to sit in today and I’m sure we will have you back and doing other criminal defense sort of topics.
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