Written by Brian Clarry, Esq.
Edited by Bill Pfund, Esq.
Last spring, I wrote an article discussing the law of punitive damages in Virginia in the civil litigation context. I focused on the issue of a defendant’s intoxication at the time of a motor vehicle accident. Under Virginia common law, intoxication does not necessarily establish any particular level of negligence, much less the heightened negligence required for a punitive damages award. Huffman v. Love, 427 S.E.2d 357, 360 (1993). Instead, it is only one factor to be considered in determining whether the entirety of the defendant’s conduct showed a conscious disregard for the safety of others. Id.
There is a bevy of case law and even an entirely separate statutory framework for driving under the influence of alcohol. Marijuana intoxication, however, is more of a blank slate.
When I wrote last spring, Governor Ralph Northam was in the process of proposing amendments to a bill passed by the General Assembly in February that would, among other things, make possession of up to an ounce of marijuana legal for adults over 21 years of age
Now, the bill has become law. It is important to pause and discuss what’s in the new law, which deals with the substance of the issue and lays out a three-year process to legalize marijuana and create a regulatory framework for the sale of the product.
The New Law (HB2312 – SB1406)
Effective July 1, 2021, Virginia legalized the possession of up to an ounce of marijuana[1] for adults 21 and older, as well as the consumption of marijuana in non-public areas. The law also permits residents to cultivate up to four marijuana plants per household at one’s main personal residence.
It remains illegal to buy or sell marijuana and marijuana seeds, until 2024. While some states have legalized marijuana sales, it remains illegal to transport marijuana across state lines. The law permits “adult sharing,” which amounts to a non-remunerative transfer of up to an ounce between individuals. The transferor cannot obtain a financial reward in this type of transaction, prohibiting the “gifting market” in places like Washington, D.C. in which customers buy generic items from stores and in exchange receive a “gift” of marijuana.
Marijuana and Vehicles
Consumption of marijuana inside a moving vehicle remains illegal, which applies to both drivers and passengers. In terms of possession inside a vehicle, marijuana is required to be in a fully sealed or locked container. However, what constitutes proper sealing is unclear and would likely not include common methods of storage. As such, having marijuana in the driver or passenger area is likely to be considered an open container with a presumption of driving under the influence—as is the case with alcohol.
It’s also important to note that the law prohibits possession of marijuana in a motor vehicle transporting passengers for hire as well as in commercial vehicles.
Driving after Consumption
Unsurprisingly, driving under the influence of marijuana is illegal. In the context of a motor vehicle accident, however, the inquiry into marijuana intoxication is complicated. In general, there is no currently available widespread means to test marijuana intoxication.
The current tests can determine if an individual consumed THC, the intoxicating ingredient in marijuana, at some point in the near past.
But these tests are currently unreliable to determine an individual’s level of intoxication at any given time in the recent past. As such, a positive THC test post-accident is generally inadmissible in civil and criminal trials. See Turner v. Commonwealth, 2017 Va. App. LEXIS 4, *12 (2017); Miller v. Commonwealth, 2017 Va. App. LEXIS 170, *7 (2017).[2]
Unlike alcohol, a given level of THC in the bloodstream does not work in linear fashion to correlate with a given level of impairment.[3] It can, however, indicate the recency of consumption. While Tetrahydrocannabinolic acid (THCA) can remain in the body’s system for roughly 30 days, the active component of marijuana, THC, generally remains in one’s system for a day or so, according testimony by Dr. Connie Lucki of the Virginia Department of Forensic Science. It’s generally agreed that the highest concentration of THC will be in the first 30 minutes after consumption, with the psychotic effects being strongest in the first three hours, according to the National Highway Transportation Safety Journal.
It remains to be seen what, if any, regulations will be promulgated in the coming years relating to marijuana intoxication and driving. Given that current attempts in other jurisdictions to tie a given THC level to impairment is considered arbitrary,[4] advances in lab testing and equipment will likely be necessary before there is widespread adoption of such laws.
From a defense perspective, the main takeaway is that a post-crash positive THC test does not negate the ability to mount an able defense. Moreover, a punitive damages claim that merely alleges the defendant’s intoxication can be stricken via dispositive motion at an early phase of litigation. Stay tuned for updates as the regulatory framework for Virginia’s new marijuana law develops.
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[1] Further regulations are expected to address edible marijuana. Until then, the entire weight of any edible is likely subject to the one ounce limit.
[2] The National Highway Traffic Safety Administration concurs as follows: “Toxicologists are not able to provide expert testimony that a specific amount of THC present in a suspect’s blood (or other specimen) is definitively associated with being impaired by marijuana and render the driver unable to drive safely.” National Highway Traffic Safety Administration. Drugs and Human Performance Fact Sheets. Marijuana. May 2018.
[3] https://www.npr.org/sections/health-shots/2016/02/09/466147956/why-its-so-hard-to-make-a-solid-test-for-driving-while-stoned
[4] https://www.centralmaine.com/2015/04/30/experts-effort-to-set-blood-standard-for-marijuana-impaired-driving-not-backed-by-science/.