Marijuana Decriminalization in Virginia Puts Immigrants at Risk

What has changed?

On Sunday, April 12, 2020 Governor Northam signed a bill eliminating jail time as a possible punishment for marijuana possession, making possession of less than one ounce of marijuana a civil infraction punishable by a fine. It is important to note that this is not full legalization. The sale of marijuana, and its possession, remains illegal in Virginia but the punishment for possession has been drastically reduced.

Prior to this new bill being signed into law, marijuana possession was a jailable misdemeanor offense in Virginia. Defendants who were charged by police were required to appear in court before a judge and could not prepay the charge to avoid that appearance. A conviction went on a defendant’s criminal record permanently, and resulted in a six month long driver’s license suspension.

Why is this Dangerous for Immigrants?

While this change bodes well for Virginians who were born in the US or who have become citizens, decriminalization could have dire consequences for you if you are in the United States on a visa or as a permanent resident. Under the new law, if an immigrant is stopped and charged with marijuana possession, the charge will be prepayable and appear to be similar to a simple speeding ticket. This could not be further from the truth.

First of all, immigrant defendants will not be entitled to the assistance of a public defender. And, while a civil infraction will have fewer consequences within the criminal justice system, it would create serious immigration consequences. Immigration law defines a ‘conviction’ to include even civil infractions with very low penalties. A conviction under this new law would still count as a drug conviction for immigration purposes, making lawful permanent residents deportable.

All of this is made even more problematic because police officers and criminal courts in Virginia are typically unaware of a defendant’s immigration status, nor are they apprised of how this new law could cause particular harm to immigrants. All of the interactions an immigrant will have with the criminal justice system if charged with civil infraction marijuana possession will seem to indicate that the charge is not going to be a problem - it is, after all, just like a speeding or parking ticket. This false sense of security will cause many immigrants to simply pay their fine and assume that nothing will go wrong.

What Should You Do?

If you are an immigrant and you are ticketed for marijuana possession, it is absolutely imperative that you consult with an immigration attorney to strategize a plan of attack so that you do not face the dire immigration consequences that could result from a conviction for a civil infraction marijuana possession. The attorneys at Henson Pachuta & Kammerman, PLLC handle both criminal and immigration matters in Virginia and are particularly well positioned to help you avoid these disproportional consequences.

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