Northern Virginia Criminal Defense FAQ

New Virginia Law, HB 5058, Means Fewer Reasons to Pull You Over; Smell of Marijuana Can’t Justify a Search

Nov 11, 2020 | Criminal Law

The Virginia General Assembly has met over the past few months to consider proposals related to Criminal Justice Reform. There have been several significant results of this Special Session. Among them is HB 5058 which, broadly, makes two big changes that will limit police/citizen encounters. First, the law makes a number of vehicle related offenses “secondary offenses,” which a person cannot be pulled over for, but can only be cited for if they have been pulled over for something else. Second, the law prohibits using the “plain smell of marijuana” as a basis for a search of a person, place, or vehicle. HB 5058 should go into effect no earlier than March 1, 2021.

Both of these changes are significant, and will limit encounters between police and citizens.

Limits on Police Encounters for Minor Non-Moving Offenses

HB 5058 takes a number of common “non-moving” offenses, and makes them ‘secondary’ offenses, meaning that, on their own, they are not enough of a reason for you to be pulled over. Theses offenses include:

  • Illegal Tints
  • “defective and unsafe equipment”
  • Illegal Exhaust
  • Brake Lights (except at night)
  • Objects Hanging From a Rear-View Mirror
  • Expired Inspection/Registration (only for the first 4 months that the registration or inspection are expired)

Officers also cannot stop a person solely for jay-walking.

These limits will reduce how often police officers encounter citizens for relatively minor infractions. Such a change will benefit both police and citizens.

If, however, an officer pulls someone over for nothing more than one of these newly excluded infraction, then any evidence obtained as a result of that stop shall be suppressed at any hearing. This is a serious remedy that puts real teeth on this prohibition.

This remedy means that anyone who is arrested as a result of a traffic stop should have a lawyer review the facts surrounding the stop to make sure that any evidence obtained was done so lawfully, and if not – is suppressed.

Ban on use of “Plain Smell” of Marijuana to Justify a Search

While Virginia’s law on Marijuana has recently changed so that simple possession is a civil infraction subject only to a $25.00 fine, that had not impacted Officers’ ability to search your person, vehicle, or home on the simple assertion that they “smelled marijuana.”

HB 5058 enacted a ban on the search of persons, vehicles, and buildings based only on the smell of marijuana. “The bill also provides that no law-enforcement officer may lawfully stop, search, or seize any person, place, or thing solely on the basis of the odor of marijuana, and no evidence discovered or obtained as a result of such unlawful search or seizure shall be admissible in any trial, hearing, or other proceeding.”

While the odor alone is not enough, other evidence may provide the basis for a search, particularly when the officer can observe items related to distribution like scales, baggies, or other paraphernalia.

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These changes will greatly limit pretextual stops where officers use minor infractions, or the essentially unprovable “plain smell” of marijuana, to initiate stops and seizures when they are really looking for something else. Because this law includes the specific remedy of exclusion of evidence, it is important that your criminal defense lawyer knows to go all the way back to the beginning of a police encounter to look for these issues, so that the Commonwealth isn’t using evidence that should be suppressed. Staying aware of these changes in the law is one way that we are able to give our clients the best advice and representation.

Contact our Virginia Criminal Defense Attorneys to learn more about how we can help you.

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