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West Virginia Marijuana Laws

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Penalty Details

Marijuana is a Schedule I drug.

See

  • W. Va. Code § 60A-2-204 (2015)

Possession

Possession of marijuana in any amount is a misdemeanor punishable by not less than 90 days, nor more than 6 months and not fined more than $1,000.

Conditional discharge for first offense of possession of less than 15 grams of marijunana: For a first drug related possession charge, the court can give the offender probation with the traditional array of drug testing and supervision traditionally part of the probation process. Discharge is not a legal conviction.

See

  • W. Va. Code §§ 60A-4-401(c) -407 (2015)

Sale or Distribution

Includes possession with the intent to distribute marijuana.

Felony punishable by no less than 1 year, and no more than 5 years, imprisonment and a fine of not more than $15,000.

Trafficking marijuana into West Virginia is punishable by no less than 1 year and no more than 5 years imprisonment and fined up to $15,000.

West Virginia has a two-year mandatory minimum sentence for sale/distribution to a minor or if sale/delivery occurs within 1,000 feet of a school.

See

  • W. Va. Code §§ 60A-4-401-409 (2015)

Cultivation

Cultivation in West Virginia will be punished based upon the aggregate weight of the plants found as either simple possession or as possession with the intent to distribute. See the “Possession” and “Sale or Distribution” sections for further penalty details.

Hash & Concentrates

Hashish and concentrates are considered a compound or preparation of marijuana and constitute a Schedule I controlled substance.

See

  • Hubbard v. Spillers, 202 S.E.2d 180 (W.Va 1974)
  • W. Va. Code §§ 60A- 2-204(d) (19) (2015)

Paraphernalia

Any person who conducts, finances, manages, supervises, directs or owns all or part of an illegal drug paraphernalia business is guilty of a misdemeanor, and is subject to no more than a $5,000 fine, or no less than six months and no more than 1 year imprisonment.

See

  • W. Va. Code §§ 60A-4-403 (2015)

Sentencing

Second or subsequent convictions for both possession and distribution are eligible for double the penalty set out in law.

See

  • W. Va. Code §60A-4-408 (2015)

Conditional discharge for first offense of possession: For a first drug related possession charge, the court can give the offender probation with the traditional array of drug testing and supervision traditionally part of the probation process. Discharge is not a legal conviction.

See

  • W. Va. Code §60A-4-407 (2015)
Misdemeanor or Felony

Possession is a misdemeanor, while distribution and manufacture are felonies.

Mandatory Minimum

Mandatory two year minimum sentence (doubling WV’s regular one year minimum for marijuana felonies) if the offender is:

  1. Twenty-one years of age or older at the time of the distribution upon which the conviction is based, and the person to whom the controlled substance was distributed was under the age of eighteen years at the time of the distribution; or
  2. Eighteen years of age or older and the distribution upon which the conviction is based occurred in or on, or within one thousand feet of a public or private elementary, vocational or secondary school or a public or private college, junior college or university in this state.

See

  • W. Va. Code §60A-4-406 (b) (2015)

Trafficking marijuana into West Virginia carries a mandatory minimum sentence of not less than 1 year.

See

  • W. Va. Code  §60A-4-409(b)(2) (2015)

Forfeiture

Everything involved in the production and transportation processes of controlled substances, including cars, houses, and monetary funds, are liable to be forfeited to the State after a successful prosecution of a drug distribution or manufacturing case.

Paraphernalia: Any property, including money, used in violation of the provisions of this section may be seized and forfeited to the state.

See

  • W. Va. Code §§ 60A-7-703-705 (2015)

Miscellaneous

Drug Screening Adulteration

Attempts to adulterate drug screening test or selling or knowingly possessing products for that purpose is punishable:

  1. For a first offense is guilty of a misdemeanor and, upon conviction, shall be fined not more than one thousand dollars;
  2. For a second offense is guilty of a misdemeanor and, upon conviction, be fined not more than five thousand dollars; and
  3. For a third or subsequent offense is guilty of a misdemeanor and, upon conviction, be fined not more than ten thousand dollars or confined in the regional jail for not more than one year, or both.

See

  • W. Va. Code §§ 60A- 4-412 (2015)
Driver’s License Revocation

Any person convicted of driving under the influence of marijuana or any felony in the commission of which a motor vehicle is used, is subject to mandatory driver’s license revocation.

Mandatory license revocation for any felony offense when a motor vehicle is used in its commission. This would include conviction for manufacturing or delivering pot, but simple possession would not qualify as a felony.

See

  • W. Va. Code § 17B-3-5 (2015)
  • W. Va. Code §60A-4-401 (2015)
Conditional Release

The state allows conditional release or alternative or diversion sentencing for people facing their first prosecutions. Usually, conditional release lets a person opt for probation rather than trial. After successfully completing probation, the individual’s criminal record does not reflect the charge.

Drugged Driving

This state has a per se drugged driving law enacted. In their strictest form, these laws forbid drivers from operating a motor vehicle if they have a detectable level of an illicit drug or drug metabolite (i.e., compounds produced from chemical changes of a drug in the body, but not necessarily psychoactive themselves) present in their bodily fluids above a specific, state-imposed threshold.

Hemp

This state has an active hemp industry or has authorized researchs. Hemp is a distinct variety of the plant species cannabis sativa L. that contains minimal (less than 1%) amounts of tetrahydrocannabinol (THC), the primary psychoactive ingredient in marijuana. Various parts of the plant can be utilized in the making of textiles, paper, paints, clothing, plastics, cosmetics, foodstuffs, insulation, animal feed, and other products. For more information see NORML’s Industrial Use section.

Mandatory Minimum Sentence

When someone is convicted of an offense punishable by a mandatory minimum sentence, the judge must sentence the defendant to the mandatory minimum sentence or to a higher sentence. The judge has no power to sentence the defendant to less time than the mandatory minimum. A prisoner serving an MMS for a federal offense and for most state offenses will not be eligible for parole. Even peaceful marijuana smokers sentenced to “life MMS” must serve a life sentence with no chance of parole.

Medical Marijuana

This state has medical marijuana laws enacted. Modern research suggests that cannabis is a valuable aid in the treatment of a wide range of clinical applications. These include pain relief, nausea, spasticity, glaucoma, and movement disorders. Marijuana is also a powerful appetite stimulant and emerging research suggests that marijuana’s medicinal properties may protect the body against some types of malignant tumors, and are neuroprotective. For more information see NORML’s Medical Marijuana section.

West Virginia Drugged Driving

A person is guilty of a DUI in West Virginia if he or she (1) operates a vehicle while he or she is under the influence of any controlled substance or under the influence of any other drug, (2) is under the combined influence of alcohol and any controlled substance or any other drug, (3) is an habitual user of narcotic drugs and drives a vehicle, (4) knowingly permits his or her vehicle to be driven by any other person who is under the influence of any controlled substance, any other drug, or the combined influence of alcohol and any controlled substance or any other drug, OR (5) knowingly permits his or her vehicle to be driven by any other person who is an habitual user of narcotic drugs W. Va. Code Ann. § 17C-5-2. (West 2010). Legislation enacted in 2017, SB 386, imposes per se traffic safety limits criminalizing the operation of a vehicle by state-registered medical cannabis patients if they posses trace amounts of THC (3 ng/ml of THC or more) in their blood.

Implied Consent

In West Virginia, a person suspected of driving while under the influence of alcohol has, by virtue of driving in the state, consented to provide a sample of breath, blood, or urine to police for testing in order to determine the amount of alcohol in his or her system. However, implied consent law does not require that an individual suspected of driving under the influence of marijuana or controlled substance submit to a chemical test in order to screen for the presence of drugs in his or her body. Ergo, in West Virginia chemical sample from an accused person should only be given on a voluntarily basis, and no penalties or sanctions apply for refusal to submit to chemical testing for drugs.

Penalties

  • First offense misdemeanor – imprisonment for up to 6 months; fine of not less than $100, nor more than $5,000; 6 months (90 days mandatory) license revocation Id. § 17C-5-2 (d)(2).
  • Second offense (w/i 10 years) misdemeanor – imprisonment for not less than 6 months, nor more than 1 year; fine of not less than $1,000 nor more than $3,000; 10 years (5 years mandatory) license revocation Id. § 17C-5-2(k).
  • Third and subsequent offense (w/i 10 years) felony – imprisonment of not less than 1 year nor more than 3 years; fine of not less than $3,000, nor more than $5,000; life (10 years mandatory) license revocation. Id. § 17C-5-2(l).

NOTE: all types of DUI convictions will be considered previous convictions.

Other Penalties & Penalty Enhancers

  • If passengers are under 16 misdemeanor – imprisonment of not less than 2 days, nor more than 12 months, fine of not less than $200, nor more than $1000. W. Va. Code, § 17C-5-2(j)(1-2).
  • Driving while an habitual user of narcotic drugs misdemeanor –imprisonment of not less than 1 day, nor more than 6 months, fine: not less than $100, nor more than $500. W. Va. Code, § 17C-5-2 (f).
  • Knowingly permitting vehicle to be driven any other person who is under the influence of any controlled substance or is an habitual user of narcotic drugs misdemeanor – imprisonment for not more than 6 months, fine of not less than $100, nor more than $500. W. Va. Code, § 17C-5-2(g)(1)-(2); W. Va. Code, § 17C-5-2 (h).

Sobriety Checkpoints

West Virginia allows law enforcement officials to conduct sobriety checkpoints under both state and federal constitutions.

Carte v. Cline, 460 S.E.2d 48 (W.Va. 1995). A plan relying on non-discriminatory procedures is required in order to conduct a sobriety checkpoint.

Case Law

Cain v. West Virginia Div. of Motor Vehicles, 694 S.E.2d 309 (W. Va., 2010) – “All that is required to seek a license revocation for driving under the influence of alcohol is that the arresting officer have “reasonable grounds to believe” that the defendant committed the offense of DUI. Rather than requiring an arresting officer to witness a motor vehicle in the process of being driven, the statute requires only that the observations of the arresting officer establish a reasonable basis for concluding that the defendant had operated a motor vehicle upon a public street in an intoxicated state.”

West Virginia Hemp Law

Year Passed: 2002
Summary: The West Virginia Legislature approved Senate Bill 447 recognizing industrial hemp having no more than 1 percent THC as an “agricultural crop.” This legislation also establishes licensing procedures to allow local farmers to “plant, grow, harvest, possess, process [and] sell” hemp commercially.
Statute: W. Va. Code §§ 19-12E-1-12E-9 (2015)

West Virginia Medical Marijuana Law

QUALIFYING CONDITIONS

  • Amyotrophic lateral sclerosis
  • Cancer
  • Crohn’s disease
  • HIV/AIDS
  • Epilepsy
  • Huntington’s disease
  • Intractable seizures
  • Multiple sclerosis
  • Neuropathies (chronic nerve pain)
  • Parkinson’s disease
  • Post-traumatic stress disorder
  • Severe chronic or intractable pain
  • Spinal cord damage
  • Sickle cell anemia.
  • Terminally illness

PATIENT POSSESSION LIMITS

Patients are permitted to possess a “30 day supply” of cannabis-infused products, but further specifics are not yet available. Patients may not possess herbal cannabis, but instead may only obtain cannabis-infused preparations in the forms of pills, oils, topicals, patches or tinctures. Cannabis-infued oils or liquids may be vaporized or nebulized.

HOME CULTIVATION

No

STATE-LICENSED DISPENSARIES

Yes

STATE-LICENSED DISPENSARIES OPERATIONAL

Not until 2019

CAREGIVERS

Yes. A patient may not designate more than two caregivers. A caregiver may not serve more than five patients at any one time.

ESTIMATED NUMBER OF REGISTERED PATIENTS

  • N/A

RECIPROCITY

Yes, but only for terminally ill cancer patients

CONTACT INFORMATION

West Virginia Department of Health and Human Resources, Bureau for Public Health. The Bureau is mandated to begin issuing patient identification cards by July 1, 2019. Full text of the law is available here. A summary of the Act is available here.

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