Virginia lawmakers could make it harder to be charged with marijuana possession

Capitol Connection

RICHMOND, Va. (WRIC)- Virginia lawmakers are trying to make it harder for people to be arrested for marijuana possession and easier for previous convictions to be removed from a person’s record. 

With Democrats in charge of both chambers of the state legislature, these bills are signs of momentum towards marijuana legalization. The General Assembly shot down the idea earlier this year but lawmakers are expected to take up the issue again in 2021 after the state’s non-partisan commission completes a study. 

One bill being considered during the ongoing special session would prohibit law enforcement from searching a “person, place or thing” based on the scent of marijuana alone. Instead, an officer would have to see the substance or come across it while conducting an unrelated search for a person to be charged with possession.

The legislation furthers that evidence seized during an unlawful search as defined by the bill cannot be used in court.

Versions of this bill have already passed in the House and Senate. It was later changed to exclude airports and commercial vehicle operators, meaning it needs to win the approval of both bodies again before it can go to Gov. Ralph Northam’s desk.

Jenn Michelle Pedini, development director of the cannabis advocacy group NORML, said the legislation builds on marijuana decriminalization that took effect on July 1 in Virginia. Under the new law, personal possession of up to an ounce is punishable by a $25 dollar fine. That fine can be pre-paid similarly to a traffic ticket.

“The appetite to reform cannabis policy in the commonwealth has been steadily growing since 2015 and the legislature took enormous steps forward this year,” Pedini said.

Pedini said the bill limiting searches is an important step that will reduce unnecessary arrests.

“Despite equal usage rates, black Virginians are arrested nearly four times more for marijuana possession than their white counterparts are and the majority of marijuana possession charges do stem from traffic stops,” Pedini said.

Opponents of the bill have said preventing evidence collected during a search triggered by scent from being used in court could have unintended consequences.

Republican Sen. Ryan McDougle (R-Hanover), who also opposes legalization and decriminalization, offered an example: “If you killed somebody and stuffed them in the trunk, and the officer finds that because they smelled marijuana and asked you to search, that doesn’t come in as evidence and you can’t be found guilty based on that search,” he said.

McDougle also has concerns about the scope of a bill from House Democratic Caucus Chair Charniele Herring (D-Alexandria) that would expand expungement.

Herring said there is currently no process in Virginia for removing past convictions from a person’s record, putting the commonwealth out of step with most other states. She said her bill would create a system to automatically expunge more than 150 crimes if a person hasn’t committed any subsequent offenses eight years after the conclusion of their sentence.

Herring said the bill includes most misdeamnors, including marijuana possession and possession with intent to distribute.

“I always call it a bill of redemption,” Herring said. “I think it’s important when people turn around their lives to afford them a clean record.”

McDougle said he supports expungement of some non-violent drug crimes for those under 21. He said this bill goes way too far.

“I don’t think the fact that you were charged, tried and convicted should be whipped off the face of all records. No employers could ever know. That could not be determined in any background check. I don’t think that is reasonable,” McDougle said.

Herring said a Senate version of the bill is more narrow and would require the offender to petition for expungement, rather than making the process automatic.

“By requiring a petition, we’re putting up another barrier and then it will be an issue of who has the money and support to be able to go through a court process,” Herring said.

The House and the Senate will have to work out their differences before this proposal can be considered by the governor.

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