Virginia Marijuana Law

Under Virginia law 18.2-248.1, it is a criminal offense for any person to sell, give, distribute or possess with intent to sell, give, or distribute marijuana. Simple possession of marijuana is also unlawful, but it is not criminal as of July 1, 2020.

Possession with Intent to Distribute Marijuana (“PWID”)

Virginia criminalizes Possession with Intent to Distribute Marijuana (PWID) under Virginia Law 18.2-248.1.

Penalty:

Possession with intent to distribute marijuana 1oz or less is a Class 1 misdemeanor – punishable by up to 12 months in jail and a $2,500.00 fine. Possession with intent to distribute marijuana more than 1 oz but less than 5 lbs is a Class 5 felony punishable by up to 10 years in prison. Possession with intent to distribute more than 5 lbs of marijuana is a felony punishable by a prison sentence between 5 and 30 years in duration. Each marijuana crime conviction is also followed by a mandatory driver’s license suspension to last for a period of 6 months, with multiple counts to result in 6 month suspensions that will run consecutively.

Defenses:

The difference between criminal Possession with Intent to Distribute Marijuana and the non-criminal offense of Possession of Marijuana will depend on the court’s analysis of facts. Virginia courts must analyze probative evidence of intent to distribute a controlled substance. These factors include the weight of the seized marijuana, the manner in which the marijuana was packaged, and the presence of an unusual amount of cash, equipment related to marijuana distribution, or firearms.

Distribution of marijuana is defined as selling, sharing, trading, or gifting the drug. Virginia courts have considered a number of factors alone and in combination when determining if an intent to distribute marijuana exists:

1) Packaging – marijuana packaged in individual baggies supports a finding of intent to distribute.

2) Quantity – if the quantity of drugs possessed is greater than that ordinarily possessed for personal use, that fact alone may be sufficient to prove intent; however, where the quantity is small, the fact finder may infer the drugs were intended for personal use. There is a rebuttable presumption under Virginia law that a person who possesses no more than one ounce of marijuana possesses it for personal use.

3) Paraphernalia – the presence or absence of marijuana paraphernalia for personal use – the absence of “paraphernalia suggestive of personal use” such as a bong or wrapping papers, could be construed as evidence of an intent to distribute.

4) Expert testimony – expert testimony, such as from a police officer, is one factor to be considered by the fact finder in determining whether the marijuana was possessed with intent to distribute.

5) Cash –  the presence of an unusually large amount of cash or money, suggesting profit from sales, is another circumstance that negates an inference of possession for personal use.

6) Self-incrimination – any statements made by the accused can be used against the accused, unless the statements were taken after an arrest and interrogation without reading of miranda.

7) Other evidence – the court will consider any other evidence that the court deems relevant to the case. E.g. witnesses, confidential informants, videos, photographs, etc.

Defense of accommodation. If the defense can prove that the intention was not profit but instead accommodation to another individual, a felony charge can be reduced to a Class 1 misdemeanor with a maximum penalty of 12 months in jail.



Penalty Table for Virginia Marijuana Crimes

Marijuana OffenseCode SectionCriminal ClassificationMaximum JailMinimum JailMaximum Fine
PWID, Sale or Distribution < 1 ozVa. Code 18.2-248.1Class 1 Misdemeanor12 monthsN/A$2,500.00 Fine
PWID, Sale or Distribution > 1 ozVa. Code 18.2-248.1Class 5 Felony10 years1 year$2,500.00 Fine
PWID, Sale or Distribution > 5 lbsVa. Code 18.2-248.1Class U Felony30 years5 yearsN/A
PWID, Sale or Distribution, 3rd OffenseVa. Code 18.2-248.1Class U FelonyLife in prison5 years$500,000.00 Fine
Manufacturing MarijuanaVa. Code 18.2-248.1Class U Felony30 years5 years$10,000.00
Selling Marijuana to MinorVa. Code 18.2-255Class U Felony50 years10 years$100,000.00
Transporting into Virginia with Intent to Distribute > 5lbsVa. Code 18.2-248.01Class U Felony40 years5 years$1,000,000.00
Transporting into Virginia with Intent to Distribute > 5lbs, 2nd OffenseVa. Code 18.2-248.01Class U Felony40 years10 years$1,000,000.00

Each marijuana crime conviction is also followed by a mandatory driver’s license suspension to last for a period of 6 months, with multiple counts to result in 6 month suspensions that will run consecutively. 

Marijuana Sale and Distribution Crimes

Virginia law criminalizes the sale and distribution of marijuana.

Distribution or sale of marijuana 1oz or less is a Class 1 misdemeanor – punishable by up to 12 months in jail and a $2,500.00 fine. Distribution or sale of marijuana more than 1 oz but less than 5 lbs is a Class 5 felony punishable by up to 10 years in prison. Distribution or sale of more than 5 lbs of marijuana is a felony punishable by a prison sentence between 5 and 30 years in duration. Each marijuana crime conviction is also followed by a mandatory driver’s license suspension to last for a period of 6 months, with multiple counts to result in 6 month suspensions that will run consecutively.

Defense of accommodation. If the defense can prove that the intention was not distribution for profit but instead accommodation to another individual, a felony charge can be reduced to a Class 1 misdemeanor with a maximum penalty of 12 months in jail.


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Manufacture of Marijuana

The manufacture of marijuana, or possession of marijuana with the intent to manufacture, are both equivalent felony offenses punishable by imprisonment 5-30 years and a fine of up to $10,000. A defense to manufacturing marijuana is showing that it was manufactured for personal use.


Marijuana Law FAQ

Can I be punished for conspiracy to commit a marijuana offense?

Conspiracy to commit a marijuana crime is punished the same as the crime that was intended during the conspiracy. Conspiracy in Virginia is defined as an agreement between two or more people to commit a crime followed by some act by the conspirators that shows this agreement was made. Conspiracy to commit a marijuana offense is punished under VA Code 18.2-256.

Can I be punished for an attempt to commit a marijuana offense?

The attempt to commit a marijuana crime is punished very seriously in Virginia. An attempt is generally defined as making a direct step towards committing the crime while intending to commit that crime. The intent is defined as a conscious purpose. Both intent to commit the marijuana crime and the direct step towards that crime is required. VA Code § 18.2-257 punishes attempts at a misdemeanor crime as a Class 2 Misdemeanor, which is punished by up to 6 months in jail. An attempt to commit a Felony marijuana crime is punished by up to 10 years in prison, which is the same maximum penalty as the actual completed crime.

Can I be punished for forging a marijuana prescription?

Virginia Law 18.2-258.1 criminalizes obtaining or procuring the administration of marijuana by fraud, lying or forgery. This means that individuals who forge prescriptions for marijuana or increase the dose that is prescribed are committing a class 6 felony. Related crimes include prescription pad theft, possessing fraudulent prescriptions, possessing prescription medicine not prescribed to you by a doctor, calling a pharmacy to order fake prescriptions, and using computers to facilitate all of the above.

Is THC Oil considered marijuana?

No. THC Oil possession is criminal. Click to read about Virginia’s THC Oil law.

How are Synthetic Marijuana / Spice offenses punished under Virginia law?

Synthetic Cannabinoids, “JWH,” or “Spice,” is an herbal product sold as incense. Synthetic Cannabinoids are a Schedule I drug. Code of Virginia § 18.2-248.1:1 makes it illegal to possess, give, sell, or distribute Spice. Possession of Spice is a Class 1 misdemeanor punishable by imprisonment for up to 12 months and/or a fine of up to $2,500. Sale, gift, distribution, or possession with intent to sell, give or distribute is a Class 6 felony punishable by imprisonment for one to 10 years or imprisonment for up to 12 months and a fine of up to $2,500. Click to read about Virginia’s Synthetic Marijuana law.


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