Virginia’s General Assembly Legalized Marijuana. What Does The Law Say?

By Megan Schiffres, Dogwood Staff

April 8, 2021

Final bill puts in worker protections, while also increasing police budgets.

RICHMOND – Personal possession and cultivation of marijuana will be legal in Virginia starting July 1, after the General Assembly voted to pass amendments to this year’s marijuana legalization bill. 

Starting in July, individuals can legally possess up to an ounce of marijuana in the Commonwealth. Households can also grow up to four marijuana plants, under the amendments approved by the General Assembly. 

The Virginia House voted 52-44-2 to approve the governor’s amendments. It was a tie in the Senate with a vote of 20-20, but Lt. Governor Justin Fairfax swiftly broke it by voting in favor of the amendments.

The amendments, put forward by Governor Ralph Northam, accelerated the timeline for legalization of personal possession, which would have occurred in 2024 under the original legislation.

That 2024 date still applies to commercial sale, which legislators have argued will need more time to be implemented while the state develops regulatory structures. 

Delegate Charniele Herring (D-Alexandria), who sponsored the original legislation, endorsed the governor’s amendments. 

“There is a straightforward injustice to punishing someone for something we have already agreed should be legal,” Herring said. 

Republican Opposition to Marijuana Union Protections 

Republican legislators took aim at portions of the legislation that implemented worker protections across the new industry, allowing for the state to take disciplinary actions against companies which interfere in unionization efforts, pay less than the prevailing wage, or categorize more than 10% of their employees as independent contractors.

In the House, Delegate Bobby Orrock (R-Caroline) initially tried to have the amendment thrown out on procedural grounds, arguing that it overstepped the original intentions of the bill passed by the House. After a brief consideration, Speaker Eileen Filler-Corn (D-Fairfax) rejected the bid. 

“Quite clearly, the governor’s amendments as a whole are germane,” Filler-Corn said.

Republican delegates in the House continued their attacks on the labor provisions of the amendment. Delegate Kathy Byron (R-Bedford) decried the amendments “an unambiguous up-or-down vote on Virginia’s right to work law.”

In the Senate, Sen. Mark Obenshain (R-Harrisonburg) also argued that the amendments eliminate Virginia’s right-to-work laws. He falsely claimed that businesses would be required to provide unions with unlimited access to their business properties for union meetings. There is no such provision in the bill. 

“If you care in the slightest about property rights, if you care in the slightest about fairness, about protecting the integrity of individuals rights to control their own property, this is just horrible public policy and I would hope you would vote no on that basis alone,” Obenshain said.  

Opposition to Marijuana Legalization in the Senate

Like his colleagues in the House, Sen. Tommy Norment (R – James City County) also tried and failed to prevent the amendments to House Bill 1406 from going forward through procedural objections. When that didn’t work, he said it’s going to be impossible for parents to keep marijuana away from their children. 

“If there is any expectation by you altruists that are so determined to make this part of your legislative legacy and advance it now, you think about that. You think about whether or not your children will not smoke marijuana when you tell them ‘You can’t do it until you’re 21,” said Norment. 

Norment also took a shot at the Governor personally, implying his decision making was impaired when he proposed the amendments. 

“Perhaps his excellency, for medicinal purposes, had been taking, enjoying some marijuana when he offered these amendments,” Norment said.

House Republicans Take Aim At Carter 

In the House, Byron seemed to blame Delegate Lee Carter (D-Manassas) for the inclusion of worker protections in the marijuana legislation. 

“We should all congratulate the delegate from Manassas on achieving this vote that his colleagues so furiously stopped in February,” Byron claimed.

Carter did attempt to bring forward a repeal of right-to-work legislation earlier this year. However, Democratic House leadership killed his attempt in committee. But as Carter himself pointed out on Twitter shortly after Byron’s comment, Northam’s amendment didn’t touch on the issue in the first place.

Instead, the amendment will have a more nuanced effect on unionization in the cannabis industry. 

The newly created Cannabis Control Authority will be the industry equivalent of the existing Alcoholic Beverage Control Authority. That’s the authority that will have the power to revoke a business’s license if it interferes with unionization efforts. However, there’s no guarantee they’ll have that power when marijuana sales are legal in 2024. 

Union Protections Subject to Reenactment 

The protections in the governor’s amendments for workers in the marijuana industry do not automatically take effect. 

Instead, they are among the provisions of the Act which will not become effective unless reenacted by the 2022 session of the General Assembly. 

“I’ve never seen such consternation over language that has no legal effect. Nothing we vote on today is going to do anything with regard to our right-to-work law,” said Sen. Scott Surovell (D – Mount Vernon). “It’s subject to reenactment, which means we have to vote on it again before it becomes the law.”  

He’s right. And, this provision isn’t the only one that the General Assembly postponed. 

Though it totals 283 pages and includes detailed information about the legal market, the use of marijuana tax revenue, and licensing procedures for small marijuana businesses, only a handful of provisions in the bill actually goes into effect in July. Those provisions are limited. They include speeding up the timeline for legalizing limited possession of marijuana and marijuana plants.

“This bill legalizes the possession of small amounts, under an ounce, by adults in certain circumstances. And that’s it. It doesn’t ‘legalize marijuana,’” Surovell said. “This is not going to generate some ganga-fest at Jiffy Lube pavilion out in the parking lot. Because that is smoking in public. Just like you can’t drink in public, you can’t smoke in public under this.”

Expungements and Sealing of Records 

In addition to legalizing possession, the governor’s amendments also speed up the bill’s timeline for expunging marijuana-related charges from people’s criminal records. 

Under the governor’s proposed amendments to legalization, records related to misdemeanor marijuana charges will be automatically expunged. This process will begin as soon as an automated system to perform the expungements is online, or no later than July 1, 2025, under the proposed amendment. 

Marijuana Justice founder Chelsea Higgs Wise, whose organization advocates for equitable marijuana legalization in Virginia, says the governor’s amendments are a huge step forward towards true legalization. 

“Becoming the first state in the South to legalize marijuana could not have happened without Black organizers,” said Wise. “There is much work to do but speeding up the legalization date and sealing misdemeanor [marijuana charges] by three years is a major win for racial justice advocates.” 

However, Wise says Marijuana Justice’s work fighting the criminalization of communities over-policed for marijuana-related charges is not over. That’s in part because on the same day the General Assembly approved the governor’s amendments to House Bill 1406, it also approved amendments by the governor to increase funding for the police. 

Funding Police Enforcement of Marijuana Laws

Both houses of the General Assemblyalso endorsed a budget amendment that provides $1 million to train law enforcement officers to enforce drug restrictions.

Delegate Herring, who sponsored legalization bill HB 2312, supported the funding. 

“As a public safety measure, I think it’s the correct thing to do,” Herring said. 

That measure is drawing criticism from legalization and criminal justice reform groups. They argue that legalization shouldn’t be a cover to increase funding for police.

“Funding police as drug recognition experts in order to collect data is disingenuous. Years of data proves that police enforce every marijuana penalty inequitably and increasing funding to police, for what is now a legal substance, is maintaining the justification for police to enforce driving while Black,” said Wise.  

The enforcement of traffic violations, including driving under the influence, is inequitable in the US and discriminates against Black drivers. 

According to a report by researchers at Cornell University Law School, police are more likely to stop and search Black people while driving than other races. But, those arrests yield no more contraband than random searches.

In Virginia, Black residents disproportionately receive marijuana-related charges. Of Virginia’s 133 counties and cities, one study found that 88 disproportionately arrested Black residents on marijuana-related charges from 2015-2019. That’s according to a report by the Joint Legislative Audit and Review Commission (JLARC). 

Criticism for Police Funding on Both Sides

Some doubt regarding the measure came from an unexpected side of the aisle. Delegate Tony Wilt (R-Harrisonburg) questioned the need to further fund enforcement of a crime that already exists under state law.

“Are there particular levels of someone being under the influence? What exactly are they going to enforce?” said Wilt. 

The money will go to training in “detection and enforcement for driving under the influence of drugs.”

Virginia does not set any specific chemical benchmarks for determining whether a driver is under the influence of marijuana, in part because the presence of THC in the blood can persist long after the effects of intoxication disappear.

That makes it difficult for law enforcement to determine the intoxication level of a driver, especially in comparison to the well-established standard of Blood Alcohol Content (BAC), which can be measured with a breathalyzer.

Carter and DeSteph Vote Against Funding For Police

Wilt ultimately voted in favor of the measure, along with all but seven Republicans and one Democrat. Those seven Republicans broadly opposed all marijuana legislation on the docket. One delegate, Thomas Wright (R-Cumberland), said he doesn’t “see how anything good is going to come out of this legislation for the people of Virginia.”

The lone Democrat opposing the budget allocation was Delegate Lee Carter (D-Manassas). His reasoning was part of his general opposition to increased police funding in all forms.

The Virginia House voted 91-8-1 to approve the governor’s budget amendment. 

The Senate voted 39-1 in favor of this amendment. In the Senate, only Sen. Bill DeSteph (D – Virginia Beach) voted against the budget amendment. 

Megan Schiffres is Dogwood’s associate editor. You can reach her at [email protected].

Jakob Cordes is a freelance reporter for Dogwood. You can reach him at [email protected].

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