Marijuana DUI Lawyer

On April 12, 2020, Virginia decriminalized Possession of Up to an Ounce of Marijuana. This relaxation of the laws surrounding cannabis will lead to an increase in cases of arrests for Marijuana-related DUI. Driving Under the Influence of Marijuana uses the same Virginia Criminal Code section as a typical DUI, 18.2 – 266, https://law.lis.virginia.gov/vacode/title18.2/chapter7/section18.2-266/.  Because Marijuana is an intoxicant and since driving under the influence of any mind-altering drug is a DUI, a person can be charged with a DUI for being under the influence of marijuana. Evidence has to be presented to secure a conviction under this code section, and must be proven beyond a reasonable doubt. It is important and highly beneficial to work with a Virginia Marijuana DUI lawyer, who can help to knock down or mitigate the incriminating evidence being used against you.

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Marijuana Legal Changes In the News:

 

The following blog from NORML highlights the changes to come in the marijuana laws: https://blog.norml.org/2020/04/12/virginia-governor-approves-bills-to-decriminalize-marijuana-and-legalize-medical-cannabis/

 

Democratic Governor Ralph Northam has approved legislation (Senate Bill 2 | House Bill 972) decriminalizing marijuana possession offenses. Northam also recommended technical amendments which must be approved by the legislature before the new law takes effect July 1, 2020.

The law reduces penalties for offenses involving the possession of up to one ounce of marijuana to a civil violation – punishable by a maximum $25 fine, no arrest, and no criminal record.

Under current law, minor marijuana possession offenses are classified as criminal misdemeanors, punishable by up to 30 days in jail, a criminal record, and the possible loss of driving privileges. According to data from the Virginia Criminal Sentencing Commission, more than 15,000 people were convicted for a first or second marijuana possession offense from July 2018 to June 2019.

“Virginians have long opposed the criminalization of personal marijuana possession, and Governor Northam’s signature turns that public opinion into public policy,” said NORML Development Director Jenn Michelle Pedini, who also serves as the executive director of the state affiliate, Virginia NORML.

The new law also seals the criminal records of past marijuana offenders from employers and school administrators, and defines substances previously considered hashish as marijuana.

The bipartisan, bicameral effort to amend the state’s marijuana possession penalties was led by Senator Adam Ebbin (D-30) and House Majority Leader Delegate Charniele Herring (D-46). Commenting on the bills’ final passage, Sen. Ebbin said, “This is a major step forward for criminal justice reform in Virginia. The prohibition on marijuana has clearly failed, and impacts nearly 30,000 Virginians per year. It’s well past time that we stop doing damage to people’s employment prospects, educational opportunities, and parental rights.

Delegate Herring added: “[This] is an important step in mitigating racial disparities in the criminal justice system. While marijuana arrests across the nation have decreased, arrests in Virginia have increased. This bill will not eliminate the racial disparities surrounding marijuana, but it will prevent low-level offenders from receiving jail time for simple possession while we move toward legalization in coming years with a framework that addresses both public safety and equity in an emerging market.”

Governor Northam had previously gone on record in support of decriminalizing marijuana violations and expunging past convictions, as has Attorney General Mark Herring. “Decriminalization is an important first step on Virginia’s path towards legal, regulated adult use, and one many thought was still years away, but we cannot stop now. We’ve shown that smart, progressive reform is possible and we must keep going,” General Herring told Virginia NORML.

In March, the General Assembly approved multiple bills calling on officials to further study marijuana legalization and to make recommendations to lawmakers in advance of the 2021 legislative session.

In addition to approving marijuana decriminalization, Gov. Northam also signed Senate Bill 1015, which states that no person may be arrested, prosecuted, or denied any right or privilege for participating in the state’s medical cannabis program. The program is expected to be operational and dispensing cannabis products to authorized patients by mid-year. Northam also approved Senate Bill 976 expanding and improving this program, and suggested technical amendments which must be approved by the legislature before taking effect on July 1.

“As legislators became more comfortable with medical cannabis products, they recognized that patients and legal guardians of children and incapacitated adults need the protections of lawful possession instead of the affirmative defense. That is what SB 1015 provides — a statutory protection against prosecution, not merely an affirmative defense,” remarked Senator Dave Marsden (D-37), longtime champion of medical cannabis patients in the Commonwealth.

Added NORML’s Jenn Michelle Pedini: “Later this year, Virginia patients will finally have access to medical cannabis products and explicit legal protections thanks to Senator Marsden’s legislation. Additional dispensing facilities, telemedicine, and program registration for nonresidents are among some of the many legislative improvements we were able to accomplish this year.”

 

Potential Penalties

The potential penalties for any Class 1 misdemeanor, of which driving under influence of drugs is one, are 12 months in jail, up to a $2,500 fine, and certain mandatory penalties—which could be a 12-month loss of driving privileges and the completion of certain programs, like the Virginia Alcohol Safety Action Program (VASAP) and potentially other local programs.

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Differences Between Marijuana and Alcohol DUI

Marijuana-based DUI cases are very different from alcohol-based cases, but the first large difference is that there is no presumption statute for marijuana consumption. There is no level of marijuana consumption that is per se or presumptively in violation. In Virginia, there is an inference that an individual is in violation of the DUI statute if they test for a BAC of .08 or above. There is no equivalent for marijuana.

Additionally, a DUI in Virginia due to pot typically has to be proven through a blood test. The blood test would give some sort of reading as to the concentration of the BAC or the active components in a person’s blood. A toxicologist will then be called in to opine as to what that means and evidence could flow from there. There will be different procedural defenses in the situation of any blood case or any drug case that won’t involve any presumptive level of intoxication. In addition, marijuana cases would be subject to a few other kinds of drug-specific offenses.

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Elements of Prosecutorial Proof

The prosecution needs to prove all the elements of the DUI offense beyond a reasonable doubt—whether it is for alcohol or for weed. Typically, in a marijuana DUI prosecution they are going to try to use evidence of bad driving behavior, driving behavior that is consistent with impairment, observations of the officer that are consistent with the impairment, and admissions of the accused. Admissions of the accused could include admitting to consuming marijuana recently, this information is used as evidence that there was indeed marijuana and that it impacted the behavior. Also used are observations of the officer, performance of field sobriety tests, and responses to questions that an officer asked. These can be potential evidence in a marijuana case and that will all go into what the prosecution wants to prove—the guilt beyond reasonable doubt.

 

Benefits of a Hampton Roads Marijuana DUI Attorney

Because marijuana DUI will present a wide variety of legal issues and a variety of areas that are ripe for defense, it is important to contact an experienced pot DUI attorney in Virginia, who has handled marijuana cases in the past, as soon as possible.

An attorney will certainly add value to a person’s case and there will certainly be some unique defenses that they will come up with in every DUI or marijuana case and a person will want to explore those defenses at length. It is important to talk to an attorney who is comfortable handling these cases, who has handled them in the past, and who knows what types of evidence the prosecution is going to tend to rely on to secure convictions in this type of case. Dorsk Law Office is familiar with suppression of evidence and prosecutorial and police tactics which will help to defend you and protect your rights.

Know your legal options and make the best of an unpleasant situation.

Contact Attorney Chad G. Dorsk today for a free consultation

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