For Those On Probation, Pot Decriminalization May Not Help

May 27, 2020

Virginia is preparing to decriminalize possession of an ounce or less of marijuana starting July 1. That means if a police officer finds that amount on your person or in your car for example, you’ll get a written citation and have to pay a $25 fine, rather than being charged with a crime. But some people may find not much has changed in the law, and in their lives.  WMRA’s Randi B. Hagi reports.

Even with decriminalization, the legal stakes of using pot remain much higher for some Virginia residents than others.

Credit Randi B. Hagi

CHRISTOPHER JONES: The way that they’re treating it, they don’t have a chance in the world. I’m lucky that I don’t have any felonies, because if I did, they’d really be trying to fry me.

Christopher Jones is a cook at O’Neill’s Grill in Harrisonburg. In 2017, he violated a protective order by getting into an altercation over the phone. That led to him having an 11-month suspended sentence hanging over his head, and being put on supervised misdemeanor probation. He has to regularly visit a probation officer and, among other stipulations, pass urine screens for drugs including marijuana. And the terms of his probation won’t change with decriminalization. Instead, he’s concerned that he could go to jail this summer, for having tested positive for marijuana use earlier this year.

JONES: The money I’m making right now I gotta save it, because I’m possibly going to jail in July … I have two little children, man. I have to pay $500 a month. My baby mother’s not working right now. If I go to jail, you know what I’m saying, she’s struggling. But they don’t care. They don’t care, they don’t ask you that – just go to jail. Go to jail.

Smoking helps him cope with stress. Mind you, this is a substance that a doctor can prescribe you for a variety of medical conditions, including PTSD, in 33 states. Among other losses in recent years, Christopher’s friend was shot and killed next to him in 2017, and Jones himself was shot twice that night. The trial for his friend’s murder is ongoing.

JONES: So I was kind of upset because this guy shot my friend and me, right in front of the courthouse … I got hit twice, [once] in the leg and once in the shoulder. And my friend got hit dead center in the chest. Twenty-six years old … so I got upset and I smoked.

Jones was cited, or formally “violated,” by his probation officer last year for testing positive for marijuana. He served 30 days in jail, and the terms of his probation were changed so that the next dirty screen would also count as a formal violation. That second positive screen happened in March.

JONES: I’d rather smoke marijuana than take a pill. I don’t like aspirin. The grogginess just doesn’t work for my body … Some of us don’t take pills. Marijuana is medicine, man.

Jones thinks that if he could afford a lawyer, he might be able to avoid jail time. And multiple defense attorneys in Harrisonburg agreed that their clients usually don’t get violations for testing positive once or twice. Aaron Burgin is a defense attorney with Big Valley Law, which represents clients from Winchester to Buena Vista.

AARON BURGIN: Unless it is a repeat, like a pattern of during the course of a year, testing positive six times, I don’t typically see a simple positive test for marijuana being the sole basis of a violation in the jurisdictions I practice.

Eugene Oliver is a defense attorney with the Evans Oliver law firm in Harrisonburg.

Credit Courtesy of Eugene Oliver

EUGENE OLIVER: One of the things that is routinely ordered in our courts as a condition of probation, particularly felony probation, is that the individual not consume marijuana regardless of its legal status, and in that way it’s similar to alcohol.

According to defense attorney Aaron Cook, most of the people who serve jail or prison sentences for marijuana do so because of probation violations, rather than an initial marijuana-related charge. And probation officers are the ones who determine when violations are brought to the attention of the courts.

AARON COOK: There’s a lot of discretion in when a person gets brought back to court. So for example, they’re on probation and they violate it. They get a reckless driving ticket, or they get two reckless driving tickets, or they get two reckless driving tickets and they test positive for marijuana. And as these things start to rack up, these relatively small offenses probably won’t get you back in front of the court. But at some point, the probation officer says, okay, now we’re going back to court.

Burgin thinks it’s just a matter of time before Virginia reaches full legalization of marijuana, and decriminalization is a start.

BURGIN: It is definitely the first step. And I think there’s been a wave, sort of a change in how marijuana is viewed, given that there are so many more deadly and dangerous drugs out there. There is no overdosing on marijuana … whereas you have fentanyl out there, and you have all these other drugs that officers are armed with Narcan. So those obviously is where the focus is now, the war on drugs.

Even if the General Assembly fully legalizes marijuana in the years to come, the legal consequences of smoking may not change for people like Christopher Jones, who find themselves in the probation system. Right now, while he’s laid off due to the pandemic and awaiting his court date in July, he’s just focused on saving unemployment checks to provide for his children in the event he is sent to jail.

JONES: Honestly, where I’m at right now in life, because of all the turmoil and stupid _____ I have to go through, I’m basically just alive because I have kids … Just being able to see my two kids smile everyday. Because they love me so much, it’s ridiculous, man. You can’t change that. You can’t take pure love from somebody.