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Fairfax Criminal Defense Blog


Posted by John A. Kassabian | Mar 15, 2022

With the legalization of marijuana for recreational use in Virginia, many people don't understand that it's still illegal to drive while consuming marijuana or after marijuana has been used. There are, however, some differences when it comes to driving while under the influence of marijuana versus driving under the influence of alcohol.

If you are confused about Virginia marijuana driving laws, you're not alone. Criminal defense attorneys Kassabian & Kassabian in Fairfax, VA, can help you understand the nuances of drugged driving laws in Virginia.


It doesn't matter how much (or how little) marijuana you may have consumed before or while driving. If you are pulled over for erratic driving, and the officer determines that you may be under the influence of marijuana by observing“appearance, conduct, speech, or other physical characteristic[s],” you will be subject to a blood test for drugs and potentially charged with Driving Under the Influence Drugs (DUID).

Another strong indicator of marijuana consumption while driving is the presence of an “open container,” just as with alcohol. For the purposes of marijuana, an open container is any receptacle that contains marijuana (or products that contain marijuana, such as edibles). The open container must be within reach of the driver, such as in the passenger area, on the dashboard, or in an unlocked glove box. The odor of marijuana, however, should not be used by the officer to determine that the driver is high.


Virginia drug testing laws for drivers are mostly unchanged by the legalization of recreational use of marijuana. If the officer who pulled over someone suspected of driving while under the influence of marijuana requests a blood test for drugs, any driver must submit to the blood test or face refusal consequences, which include driver's license suspension for a first offense, and a Class 1 Misdemeanor punishment in addition to loss of driver's license for a second offense.

Someone who is found guilty of driving a motor vehicle while consuming or using marijuana or marijuana product faces a Class 4 misdemeanor, the maximum penalty for which is a fine of $250. However, if someone is charged with DUI for marijuana use, they will face the same consequences that someone driving under the influence of alcohol would face.


Case law for alcohol DUIs has been used in DUI drug driving cases as well, but because the legalization of recreational marijuana use in Virginia is such a new law, there are many nuances and situations to be considered while defending those who have been accused of DUI from marijuana use.  

That's why it's so important to have an experienced attorney on your side when you face the court. John Kassabian of Kassabian & Kassabian, PLC, is fully versed in the laws associated with marijuana use in Virginia and can help you craft a defense. For a free consultation, contact John now.

About the Author

John A. Kassabian

John A. Kassabian joined the family firm in 2002 after having served as a Prosecutor in Fairfax County and Prince William County. Specializing in criminal defense, traffic defense and civil related matters, John has an extensive criminal law background and has handled a wide variety of cases for ...

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