RICHMOND, Va. (WRIC) — Without an established roadside tool at their disposal, law enforcement officers in Virginia will have to rely on unproven methods to determine whether a driver or someone in the car has recently used marijuana.

Under the new law, cannabis use in a car can be presumed if an “open container” is found within the passenger area or if a person’s physical characteristics, including conduct and speech, “is consistent with the consumption of marijuana or marijuana products.”

People in Virginia will face a Class 4 misdemeanor charge, which doesn’t include jail time but does come with a possible $250 fine, if they are found guilty of using marijuana while in a moving car.

A law to limit traffic stops where law enforcement officers pull someone over for a minor infraction as a pretext to investigate possible criminal activity unrelated to the stop prohibits police in Virginia from solely using the odor of marijuana as a reason for searching a vehicle. Any evidence discovered, even obtained with someone’s consent, won’t be allowed in court if the officer violates the rule. 

Concern over Virginia’s “open container” rule for marijuana

Cannabis advocates have raised alarms over how the new law defines an “open container” of marijuana since state lawmakers settled on a final legalization bill in April.

Similar to Virginia’s rule concerning alcohol in a vehicle, an “open container” of marijuana is any vessel with the product inside that isn’t the originally sealed package from the manufacturer. That provision was set when retail sales and possession were slated for the same time, but a gap now exists with the legal industry expected in 2024.

Jenn Michelle Pedini, the development director for the National Organization for the Reform of Marijuana Laws (NORML) and executive director of Virginia NORML, said people should avoid driving with marijuana in the car due to these concerns.

“The best method is to not transport marijuana in your car,” they said. “However, if you need to, the safest way is to have it in a locked container in the trunk or behind the last row of a passenger seat in vehicles that do not have a trunk.” 

Top prosecutors in Virginia are also concerned over the section in the law as they seek clarity on how the rule will be enforced. Richmond Commonwealth’s Attorney Colette McEachin told 8News the new marijuana law has “created a whole host of legal questions” that will need to be answered by the General Assembly or courts.

The effort to get Virginia’s law enforcement ready for legalization

While recreational marijuana is now legal in Virginia, not much has changed when it comes to smoking and driving. Whether it’s alcohol or cannabis, driving under the influence is prohibited. There is no set legal limit for marijuana like there is for alcohol, so any use before driving is against the law.

The odor of marijuana can’t be used as justification to search a person’s car, but any other physical characteristic deemed consistent with marijuana use can. The characteristics linked to cannabis use and the current methods to detect them will align more with those used for alcohol.

“If someone is weaving all over the road, that could be something that gets people pulled over,” Russ Stone, 8News legal analyst and senior partner at the Rockecharlie Stone law firm, explained.

The Virginia Department of Criminal Justice Services is the state agency tasked with regulating and implementing law enforcement training in the commonwealth. Erik Smith, the manager for standards and policy with the division of law enforcement at DCJS, wrote in an email to 8News that officers in every law enforcement agency are required to go through 40 hours of training, with no less than four hours for legal training, every two years to prepare for new laws.

“Our deputies have been through required training that has been pushed out through the Commonwealth of Virginia Learning Center which is a state-run website,” Lt. James Cooper, a Hanover County Sheriff’s Office spokesperson, said in an email. “The training that we have been through thus far is all legislative updates regarding the revised and repealed laws.”

Next steps in Virginia

Detecting whether someone is actually impaired from marijuana depends on many factors, including someone’s tolerance and even body weight, with various methods yielding mixed results. There are breathalyzers for marijuana on the market but the science on whether a device can detect THC (delta-9-tetrahydrocannabinol), the main psychoactive component in cannabis, is not clear.

Virginia lawmakers expressed concerns over the dangers of driving impaired, citing how some states reported an uptick in crashes since legalization, before and after the bill was approved in the legislature.

States with legalized marijuana typically depend on drug recognition experts to weigh in on if someone is impaired. Virginia does have some drug recognition experts, but legislators voted to set aside more than $1.1 million for next year for law enforcement training in recognition techniques.

With DCJS not responsible for certifying drug recognition experts, Smith referred 8News to a link from the International Association of Chiefs of Police on the drug evaluation process DREs follow. According to the site, DREs use a 12-step process that includes an eye exam, checking on blood pressure and a toxicological exam.

Virginia House Speaker Eileen Filler-Corn (D-Fairfax) said Thursday she is proud of the effort to approve marijuana legalization, noting the law’s expected impact on racial disparities in enforcement and the widespread support among Virginians. “I think we really need to focus and make sure that our law enforcement is focusing on violent crimes, not whether somebody is carrying marijuana,” she said.

Filler-Corn acknowledged the General Assembly has work to do, but said she’s optimistic lawmakers can resolve issues and settle on improvements to the “complicated” measure.

“It’s challenging obviously for all of us to get done what we need to do, given the time constraints and part-time citizen legislature. So, we’ll definitely be able to build upon what we’ve done and really focus on some of the nuances and how we can improve the bill.”