Could weed distribution in Virginia already be legal?
According to the top prosecutor in Williamsburg and James City County, marijuana distribution in Virginia might now be legal — a year earlier than planned — based on what he says is an apparent mistake in the recently passed state budget.
But the Virginia Division of Legislative Services, the agency responsible for drafting legislation and providing nonpartisan legal and research services to the General Assembly, disagrees with that assertion.
The division maintains that existing marijuana laws are repealed effective July 1, 2027.
Williamsburg-James City Commonwealth’s Attorney Nate Green, the former president of the Virginia Association of Commonwealth’s Attorneys, said the issue came to light as the association was putting together educational materials last week for its members.
The new budget bill — together with a series of repeals and enactments — took effect when Gov. Abigail Spanberger signed it into law June 29.
In its review, Green said, the prosecutors’ group realized that laws barring marijuana distribution — as well as the prohibitions on weed possession for people under 21 — might have been accidentally repealed effective July 1 rather than a year later as intended.
That’s in part because the language in the state budget repealing the marijuana laws said simply that the statutes were being repealed — and did not include the “2027” date.
Because of that, Green said, the repeals are assumed under standard and legal statutory interpretation to have gone into effect on the next July 1, which would have been last Wednesday.
If those laws are already out the window, Green said, people can legally sell any amount of weed they want in Virginia, and there’s nothing prohibiting those under 21 from possessing pot.
At the very least, Green said, the language in the budget law is “ambiguous,” and judges tend to hold unclear language in the law against the prosecution.
If someone gets charged with one of those crimes, Green said, defense lawyers can argue to judges in court that the law their clients have been charged with has been repealed.
“It has at a minimum invited the argument that the old laws were repealed as of July 1, 2026,” Green said. “They created a word problem, and word problems go against prosecutors. If it’s unclear, we lose. We only get to win when the words are clear.”
But in response to a recent inquiry from legislators, the Division of Legislative Services maintains that the language in the state budget delays the repeal of existing Cannabis distribution laws until July 1, 2027, when the state’s new framework for marijuana sales and regulation takes effect.
The intent by lawmakers to delay the implementation of the new laws until then is clear, the division said, saying in its response to the inquiry that the repeals are denoted to be effective as of July 2027.
Moreover, the new version of the Code of Virginia — which retains existing marijuana laws on the books — is expected to be released Friday.
The new cannabis marketplace is scheduled to go into effect on July 1, 2027, with hundreds of stores statewide expected to be licensed to conduct weed sales.
Under Virginia’s move toward legalization in recent years, cannabis possession has been legal, so long as it’s an ounce or less.
But selling or otherwise distributing the drug has remained against the law.
If you sell or distribute an ounce or less, it’s a Class 1 misdemeanor, punishable by up to a year in jail.
Selling between more than an ounce and up up to five pounds is a felony punishable by up to 10 years. And selling more than five pounds is a felony punishable by up to 30 years.
Another law says no one younger than 21 “shall consume or possess, or attempt to consume or possess, any marijuana or marijuana products.” A violation is a $25 fine, and anyone 17 or younger can also be ordered to substance abuse training.
All of those prohibitions, Green said, were expected to remain in place until the new weed marketplace, when they were to be replaced by a new series of provisions.
The new provisions, for example, will say that only licensed cannabis sellers, but no one else, will be able to sell the weed.
But the repeals and enactments in the budget law as written, he said, do not make sense.
“There is an argument to be made that you can harmonize all of this to make it work — such that it all becomes effective July 1, 2027 — but there’s an equally valid argument that it was all repealed last week.”
“We are worried about it,” Green said. “We are trying to look at the language thoroughly and comprehensively to determine the best path forward.”
Asked if a special session of the General Assembly might be needed to fix the problem, Green said: “It’s possible, yes.”
Peter Dujardin, 757-897-2062, pdujardin@dailypress.com
Kate Seltzer, 757-713-7882, kate.seltzer@virginiamedia.com