Virginia lawyer answers your burning marijuana questions

VIRGINIA BEACH, Va. -- When possession and recreational use of marijuana in private spaces becomes legal in Virginia on July 1, the moment will mark one of the biggest shifts in the Virginia criminal code. Thousands of people have been charged and jailed, over the decades, for simple possession of cannabis, and then overnight, possession of less than one ounce will be allowed.

Within the 280-page legislative package passed by Virginia’s legislature and signed by Governor Ralph Northam, a slew of restrictions and guidelines on how the product is stored, transported, and used can trip up even a seasoned attorney, according to Diane Toscano with the Toscano Law Group. Even still, she said Virginia’s legalization law left certain logistical aspects vague or unaddressed.

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Toscano said their law firm has been flooded with questions from clients about how to grow and to use recreational marijuana at home and not run afoul of the new laws. To help clear up some of the confusion, the firm launched an online education campaign called Clear the Smoke, Virginia. In addition, Virginia NORML and the Commonwealth have created their own websites to answer frequently asked marijuana questions.

The following is a transcript of a question and answer session with Toscano about the campaign and several of the burning questions viewers submitted about the new marijuana law. The transcript was lightly edited to make for an easier read.

Jake Burns
This law is legalization for possession, and you can grow them at your house. But my understanding is that buying the seeds or bringing them in from out of state would be illegal. So if someone was interested in using recreational marijuana, how would they even go about obtaining it under the structure?

Diane Toscano
That's a great question. The law is completely silent on how to do that. What we know is July 1 of 2021, it is still illegal to sell or purchase marijuana in Virginia. So you can't go anywhere and purchase it. It's also important to remember and know that you can't even transport marijuana from other states. That's illegal by federal law. Just because we have this legalization by the state, the federal law has not changed. So you can't have someone send marijuana to you in the mail. You can't go to another state and bring it into Virginia. There's no way that you can purchase marijuana in Virginia because that's still illegal as well. You can gift up to one ounce of marijuana. Whoever that first person is that has this marijuana, they can gift up to one ounce to somebody, but you can't order it over the internet or go somewhere to buy it.

Jake Burns
We spoke with Virginia NORML and they mentioned there's already obviously a pretty thriving black market for marijuana in Virginia. So, with the gifting thing, are you clear on where that stands? It seems in the law, to me at least, that if you're in a private place and someone has marijuana, they can gift you up to an ounce or some of the plants as well. Is that your understanding of how that would work in the way the law is written?

Diane Toscano
That's my understanding of the law. It cannot be done in a public place, you have to be somewhere private in your home. You can be gifted up to one ounce. But that means that you cannot exchange goods for the marijuana. You can't give money for the marijuana or services, it has to be a gift. The law doesn't even specify how many times you can be gifted up to one ounce of marijuana. It just says up to one ounce. So there are some blurry areas of this law.

Jake Burns
If you do trip up on this, I mean, it seems like it is kind of complex. What can people face if they get caught with an illegal amount once this law goes into effect?

Diane Toscano
That's important to know because there are civil penalties and there are also still criminal penalties for possessing marijuana if it's over a certain amount or over a certain amount of plants. So you could still run into criminal charges. We do have CleartheSmokeVA.com which lists out what the penalties are depending on the amount that you have in your possession.

Jake Burns
For the people who might want to grow [up to four] marijuana plants at home, what are some of the things they need to think about? What are some of the guidelines in order for them to do that and not run afoul of any law?

Diane Toscano
So it says you can grow up to four mature plants but the way my reading of the law right now, the way that that looks is that it's per household. So it doesn't matter how many people live together, how many roommates, it's not about each person having four mature plants it's actually the house having four mature plants.

You can't have it in public view and you also have to tag the plant. You have to be over 21, you have to have your name on it, you have to have what it is. If you're going to do this, you can't smoke it in public, you have to stay inside your home or somewhere private, you can't be somewhere in the public using the marijuana that you're growing.

We've had some inquiries as well about, what if I have four mature plants in my house, but that's more than one ounce -- is that illegal? And so this is such a confusing area, because you can possess up to one ounce of marijuana, but you can also grow up to four mature plants in your home. And so we've had people ask us, how does that work, because that's going to produce more than one ounce of marijuana. And it doesn't say. The law doesn't say you can have four mature plants or up to one ounce on your person.

Jake Burns
I've been thinking about this quite a bit the past couple of months. It feels like a lot of this is somewhat of a wink, wink nod, nod kind of thing. And that's why it's a gray area, right? Because people were kind of hinting at something that some people might know about already, but might not know, I mean, is that kind of how you feel about this? Or where does that go?

Diane Toscano
It's hard, I try not to give my opinion or get politically involved. I really focus on the fact that we're a law firm. And I feel that it's a service that we should provide to our clients by having this knowledge in advance. Normally you think defense attorneys, you get them when you break the law. But with this type of campaign that we're doing, I think it's important to educate and let people realize this is not clear. And a lot of this, even if you asked me, we'll see what happens in court. I have arguments to be made, depending on how somebody is charged or what we run into in the future. But a lot of it is not black and white. So it's tough.

Jake Burns
So let's move on to the transportation piece. So what is your understanding of if you are transporting marijuana on July 1. What you have to do? And then what can the police do if they think you might think you've been using marijuana, which is obviously still very illegal to drive.

Diane Toscano
So first off, it is still illegal under federal law to transport marijuana, that's still an illegal substance under federal law. So everyone should know that.

In Virginia, however, what they have said is you're not allowed to have an open container in your car. Now, what's interesting when you read the law, an open container is anything other than a container that the manufacturer has provided.

But again, we don't have a manufacturer, so I don't know where you're going to get that manufactured container.

So basically, any marijuana you have in a container in the car is considered an open container, which is illegal.

And more importantly, having an open container is a permissive inference that you're under the influence of marijuana. So I'm sure people, maybe some have thought about this, but some may not have that. That means you could if there are other factors that are going to be with that open container marijuana, you could possibly end up with a driving while under the influence of marijuana charge.

But when I've talked to police officers that I know and work closely with in this area, they've been advised and what the law is saying is that they are not to search or stop a person or a vehicle based only on the odor of marijuana.

So that's no longer allowed, which is a huge change. A lot of my cases when I represent criminal defendants have started from an odor of marijuana. So that's a big difference. The police, at least for the city and local state police in Virginia, have been informed not to do a search or stop for that reason. But again, it the federal agents can do whatever they see fit to do.

Jake Burns
How important is it that that's no longer a reason for police to pull you over? Just because they smell marijuana?

Diane Toscano
That's a huge deal because as a former prosecutor and defense attorney, as I said, that's how a lot of cases start. If there's an odor of marijuana and you get pulled over prior to July 1 that allowed an officer to then search your vehicle or search a person because just for that odor of marijuana, and then if something else was found on the person or the car, they were allowed to pursue criminal charges, and you couldn't get that thrown out, because it was just based on the odor. That's no longer the case. So it is important for people to know their rights and what this means.

Jake Burns
The open container piece, it seems very interpretive. How big of a problem do you see that being come July 1?

Diane Toscano
I would recommend to my clients not to have marijuana with you in the vehicle at all. It's still not a good idea. What we do know is July 1, the law is clear that it is illegal to smoke marijuana in public, to have your plants visible by the public, to have an open container in your car. So, I would suggest you just don't have it in the public, because that's a pretty clear part of the law. But having up to one ounce on your person or the plants in your home or somewhere private, that I feel more comfortable than telling people to drive around with an open container.

Jake Burns
We had some questions from folks about people that might have a medical marijuana license or might have that from their doctor. Does this new law impact them in any way from what you can tell, or do you know anything about how that kind of system that's already somewhat in place will interact with the new legalization law?

Diane Toscano
So we've not focused a lot on the medical marijuana part. I know that passed last year. So that was July of 2020. What I've been paying attention to with July of 2021 is regarding the criminal the legalization of marijuana as a criminal defense attorney. That's what caught my attention. That's why we started that public education campaign to help aware and make our clients aware of what's happening in our community.

Jake Burns
The employment piece of this, because obviously people now think legal, they also think, well, you know, I am probably allowed to do it and my employer can't do anything about that. What do you know about what protections are in place for a worker who might want to use marijuana and then go to work, not high obviously? What are some of the things that are in place for workers?

Diane Toscano
So Virginia is still an at-will state. So that's important to be mindful of. And it doesn't prohibit employers from doing any drug testing, necessarily. You wouldn't go to work under the influence of alcohol. So I wouldn't go to work under the influence of marijuana. Think of it like alcohol doesn't mean that you should be working when you're smoking, you know, under the influence of marijuana, just like drinking alcohol shouldn't be driving under the influence of marijuana or alcohol. And again, I would be very mindful that you can't go take a smoke break at work to smoke marijuana, like a cigarette, because again, it's illegal to smoke in public.

Jake Burns
Since it is an at-will state, the whole asking for a drug test thing, it is really up to the employer themselves, right? Whether they want to choose to do that. So it seems like it would be a very specific, job-by-job case-by-case kind of basis. Is that pretty fair to assume?

Diane Toscano
Yes, I would say so. And as I said, I haven't looked a lot at the medical marijuana laws from last year. I'm familiar with them. But I know there are some clauses of that law that allow you if you have a prescription for cannabis oil or things of that nature, then that would be an issue if an employer tried to discriminate against you because of a medical prescription. But that's a different situation. But it gets confusing if someone's in that type of situation, I would reach out to an attorney because it's gonna be very specific to your situation.

Jake Burns
The type of uses that marijuana has, obviously people traditionally think of smoking it. But in states that have been legal for a while edibles and cookies are a big thing. Does the new law address the type of product that it is whether it's the actual marijuana plant or if it's in some kind of item?

Diane Toscano
So when they're talking about the legalization of marijuana that does include up to an ounce of seedlings or seeds, the cannabis oil, the edibles. Some of it is very specific and there's still some other things that aren't touched on in this law.

But it does define at least what marijuana means.

There are still, I think, some questions as to some other things, whether that would be marijuana or not. But again, this is not a perfect law that's coming into place. But it's a start. And that's why we wanted to start a campaign for those to kind of become aware of this as it's slowly becoming legal that it's not that blanket legalization or everything that you think of as marijuana doesn't mean it's necessarily allowed.

Jake Burns
The Cannabis Control Authority in Virginia begins its work on July 1. How much do you think they'll clear up some of these issues in the months and the weeks to come?

Diane Toscano
I feel that a lot of this is going to possibly go through the courts first. I'm curious to see what happens with some of these challenges to the law, because that's going to happen. And then this is an election year. So depending on how that all falls into that there's going to be a lot developing in the next year. I don't think in the next couple of weeks, we're going to know anything more than we know now.

Jake Burns
What's it been like doing this campaign, trying to clear this up for people? What are some of the things that you've been asked?

Diane Toscano
It's been interesting. So letting people know that we don't have an attorney-client relationship, but just giving information. We've had questions about can you possess marijuana with a firearm? I've had questions about the four plants, you know, how does that work? Because that's more than one ounce. What do I do if I have a pound of marijuana because I have all these plants in my house? So we've gotten a lot of those types of questions. And so it's been interesting to have people come up to me or my attorneys and inquire about employment, driving a car. There's lots of questions here about what you can and can't do.

We have received a lot of questions about the expungement process. So what's interesting is Come July 1, they're going to start automatically expunging misdemeanor charges of marijuana.

But with that said they have up and they have until July 1 2025, to turn that list over.

So I'm not really sure how quickly that's going to happen. But you could always seek out an attorney, I know my firm, we have clients that we're just going to start the process for them come July 1 for the misdemeanor marijuana charges, to try to get that done sooner by going through the courts to expunge it.

And when I say expungement, it means to remove it completely from your record. So it's not there, nobody will have access to it, it's gone.

Now, one thing everyone should know is after July 1, it does not include the felony charges that you have, if you want to have those expunged, you have to actually petition the court where you were convicted, and then you could have a hearing as possible.

They might require a hearing on that before deciding whether that's going to be removed from your record, but you will have the ability to ask for that to be done.