Confusion Remains About Virginia’s Open Container Law and Cannabis report

The General Assembly meets this week to consider Governor Ralph Northam’s proposed amendments to bills passed during the recent legislative session. They include Northam’s request to legalize the possession of small amounts of marijuana starting this summer — instead of 2024 as the General Assembly had planned. 

Assembly members signaled they’re likely to approve the governor’s changes, but some details about the plan remain murky. It’s unclear, for instance, whether it will be legal to transport marijuana in a car come July 1, when, under the governor’s amendments, Virginians can legally have up to an ounce of marijuana.

The challenge is determining what an open container of marijuana means when the law was written with the assumption that the state would have retail sales in place.

“The entire concept of a container is different for marijuana than it is for alcohol,” said Sen. Scott Surovell. “If you were buying marijuana from a retail location, it would probably come in a labeled and marked bag with somebody’s name on it, with the weight shown. It would be a little easier to figure out if the so-called container had been opened or not.”

Dana Schrad with the Virginia Association of Chiefs of Police said it’s going to be difficult to enforce

“If it’s in a Tupperware bowl and you close the lid, is that considered sealed? We don’t know,” Schrad said. “We don’t know what sealing of a non-commercial product looks like.”

Brad Haywood is with the advocacy group Justice Forward VA. He said the unclear policy will lead to continued disproportionate enforcement.

“If you have pot, not in its original sealed packaging, and if anyone in the car looks like they are impaired in any way by pot then you’re guilty of a misdemeanor,” Haywood said. “So a police officer can still use that as a basis to extend a traffic stop to see if they can get more evidence.”

Surovell said lawmakers will have to continue to refine the statute moving forward.

“People need to make sure they have a really clear understanding of what the law is before they choose to start either growing marijuana or carrying it around on their person,” Surovell said. “Because it’s still a highly regulated product and there are still lots of restrictions on use and possession in lots of circumstances.”

If the governor’s amendments are approved, marijuana possession charges and convictions will be automatically sealed on July 1, 2025.

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