What Does Marijuana Decriminalization Mean For Virginia?

The legalization of marijuana has brought immense financial wealth to both the United States and the individual states that have legalized cannabis. The two states who have made the most revenue from marijuana sales and distribution are California and Colorado. Colorado has made $1.65 billion, while California has profited as much as $2.75 billion. US retail sales of marijuana in 2020 has reached $7.5 billion and is projected to be about $8.7 billion in 2021.1 One in five Americans are using some form of legal cannabis, and that number is expected to grow. As more states legalize marijuana, the US will continue to earn more revenue, yet more Americans will begin using cannabis as a result.

Beginning on July 1, 2020, a new law, passed and signed by Virginia Governor Ralph Northam and the Virginia General Assembly, took effect. This new law reduces penalties for offenses involving the possession of up to one ounce of marijuana to only a civil violation, which means there will be no arrest and no criminal record for the person found in possession.

The decriminalization of simple marijuana possession charges allows for a civil penalty and no more than a $25 fine. This differs from prior law, in which a first offense was punishable by a maximum fine of $500 and a maximum jail sentence of 30 days, and subsequent offenses were a Class 1 Misdemeanor. The current law also decreases from a Class 5 Felony to a Class 6 Felony the penalty for distribution or possession with intent to sell more than one-half ounce but not more than five pounds of marijuana.

The United States Constitution does not explicitly mention anything about marijuana or any drugs in general. However, it is acceptable for the federal government to ban drugs on the basis of their dangerous effects on human health and public safety. Because of the 10th Amendment, any power not specifically given to the federal government is reserved for the states. Since marijuana is not mentioned in the Constitution, each state has the ability to determine their position regarding marijuana use. When it comes to the federal government legalizing marijuana, not much has changed. Nevertheless, cannabis is now legal in 33 states and that number will continue to grow. It is now a question of when marijuana will be legalized, not if.

In Virginia’s Fairfax and Arlington counties, Commonwealth Attorneys, are no longer prosecuting adults charged with possession of small amounts of marijuana for personal use. This movement began when Fairfax County Commonwealth, Attorney Steve T. Descano and Arlington County Commonwealth, Attorney Parisa Dehghani-Tafti won their respective elections in November of 2019, where they both promised sweeping criminal justice reform. Both Descano and Dehghani- Tafti agreed that the prosecution of possession of small amounts of marijuana does little to protect public safety, disproportionately leads to the incarceration of minorities, saddles defendants with damaging felony and misdemeanor convictions, and drains resources that can better be allocated to prosecute more serious and violent crimes. Commonwealth, Attorneys in these counties will continue to pursue cases against individuals charged with distributing marijuana and conspicuous public consumption of marijuana. The Commonwealth’s Attorney offices will make a case-by-case determination regarding whether the facts qualify as “simple possession” of marijuana or not.

Other prosecutors in states across the country are also refusing to pursue criminal charges for the possession of cannabis. Prosecutors in New York City, Baltimore, and St. Louis have all stated they will not be spending valuable time and resources on pursuing marijuana convictions they perceive to be a petty crime. Although the possession of marijuana remains illegal under federal law, the nation’s attitude has shifted regarding cannabis policies.

In St. Louis, prosecuting attorneys have begun dismissing most marijuana related charges because they believe their time would be better spent on other cases. In New York City, aside from cases that impact public safety, cannabis prosecutions have dropped from 5,000 to 200 a year. Lastly, in Baltimore, prosecutors will continue to pursue marijuana trafficking and distribution cases, but resources will largely be redirected to addressing violent crimes and dangerous drug syndicates.

As the most-used recreational drug in the US, marijuana is often combined with alcohol consumption. Marijuana is not only associated with heavy drinking, but also the development of alcohol use disorders.7 Continually, while alcohol primes the brain for a heightened response to marijuana use, early exposure to cannabis decreases brain reactivity to dopamine, leading to an increased vulnerability for alcohol addiction.8 There is some evidence supporting the belief that alcohol causes a faster absorption of Tetrahydrocannabinol (“THC”). THC is the main psychoactive compound in cannabis. So, when marijuana and alcohol are used simultaneously, they can amplify the effects of each other.

Blood Alcohol Content (“BAC”) testing and THC level testing during traffic stops are very different and should be taken into consideration. When an individual consumes alcohol, it is easier to track how it is absorbed in and eliminated from the body. It is concurrently easy to test a person’s BAC, which is a good indicator of their inebriation level.

However, THC, which is the main psychoactive compound in cannabis, is much harder to test and in many situations is not a reliable way to determine whether a person is driving under the influence (“DUI”). It is possible to detect the THC content in an individual through the testing of his or her blood or urine, which is not practical during a normal traffic stop. There is no uniform law for determining how THC level testing should be used during traffic stops and there is no uniform guide for how to conduct drug screening. There is also no breathalyzer for determining THC and no national testing standard for driving under the influence of marijuana, which can lead to significant issues when an individual is pulled over for a traffic stop.

When it comes to the statistics behind driving under the influence of marijuana, almost all states who have legalized marijuana have seen an increase in drivers operating motor vehicles while “high” on marijuana. In Colorado, traffic fatalities increased by 16 percent in the three years after legalization compared to the average within the state in the final four years before legalization. Research studies conducted in Norway have concluded that marijuana use increases the risk of a vehicle collision by 30 percent compared to a sober driver. 11 Also, 69 percent of marijuana users have admitted to driving under the influence of marijuana at least once in the past year and 27 percent have admitted they drove under the influence almost daily. However, many recreational users said they didn’t think it affected their ability to drive safely.

As marijuana has become legalized in states across the US, hospitalization rates have also increased. Emergency Department (“ED”) visits have nearly doubled since 2010 and calls to Poison Control have almost quadrupled since 2006.13 Inhaled marijuana (smoke or vapers) and marijuana-infused foods and candies have led to the most medical issues. After using marijuana in these ways, patients were admitted to the ED with symptoms such as: vomiting, racing heartbeats, and even psychotic episodes.14 The main reason for the upsurge in ED visits is the increasing concentrations of THC in marijuana. Before the 1990s, THC concentration was less than two percent, gradually increasing to four percent. Then, between 1995 and 2015 THC content in the marijuana flower surged to a 212 percent increase.

Common ways to consume marijuana include eating edibles and vaping. While the effects of smoking marijuana only take a few minutes, the effects of edibles take between 1-3 hours, because food is absorbed into the bloodstream through the digestion process in the liver. However, slower absorption may result in users consuming too large of an amount because the desired effects take longer to occur. The varying amount of THC in edibles further exacerbates this issue.16 Cannabis vaporization has become more popular because of its discreet manner of use.

Vaping involves inhaling heated oil through a device, often referred to as an e-cigarette. Many people believe vaping is a safer way to consume marijuana because it doesn’t involve inhaling smoke. New research suggests that marijuana vaping has caused lung issues and even death.

Medical marijuana is now legal in 33 states and the District of Columbia; however, the Federal Drug Administration (FDA) does not approve of the use of medical marijuana as a medicine. Not every doctor is willing to recommend or prescribe medical marijuana. Each state has its own list of qualifying conditions in order for the patient to be a candidate for a prescription for medical marijuana.18 There are differing medical opinions regarding the use of medical marijuana by doctors because there has been little testing on its long-term effects. There is also little evidence of success rates. However, many patients defend the use of medical marijuana and the community support is strong.

The legalization of marijuana in states across the nation has had a large impact on the number of trafficking charges in the US. As more states have moved to legalize cannabis, federal marijuana trafficking prosecutions have consistently declined since 2012. Advocates postulate that the state-level marijuana reform has helped curb illicit trafficking by creating a regulated market for consumers to obtain the products. 19 The marijuana industry has been continuously booming beginning with Colorado and Washington State legalization in 2012. The marijuana industry has now become the fastest growing job sector of the US economy. 20 Only time will tell how marijuana decriminalization will impact Virginia in tax revenues, job growth, and a variety of other issues both positive and negative, seen in other states that have already legalized marijuana.

The Hon. Joseph A. Migliozzi is a frequent contributor to Virginia Lawyer magazine, working with interns and clerks on a variety of topical articles. He was appointed to the Norfolk Circuit Court bench in 2014 after serving as a judge in the Norfolk General District Court and as the southeastern district’s capital defender in death penalty-eligible cases.

Emily Wilson attends the College of Charleston where she is studying Political Science with a minor in Crime, Law, and Society. She served as a summer intern for Judge Joseph A. Migliozzi and the Norfolk Court System, with the objective of attending law school upon graduation.