Virginia Budget Language Briefly Threw Marijuana Laws Into Question

Budget Provision Referenced Repealed Statute

The confusion stems from Item 403 of the 2026-2028 Appropriations Act, which allocated funding for cannabis enforcement using a statutory reference that was repealed in 2021. The provision directed state funds to "enforcement activities under § 18.2-250.1," a section of the Virginia Code that criminalized marijuana possession before the General Assembly replaced it with the current adult-use framework codified in § 4.1-600 through § 4.1-606.

Legislative staff discovered the error during routine post-session review. The reference appeared in a funding rider attached to the Department of Criminal Justice Services appropriation. No floor debate addressed the language.

The discrepancy went unnoticed until July 8, when a Virginia defense attorney filed a motion to dismiss a pending possession charge, arguing that the budget language had effectively re-criminalized possession by funding enforcement of a repealed statute. The motion cited the doctrine of implied repeal, which holds that newer statutes supersede older conflicting laws.

Attorney General Issues Emergency Guidance

Virginia Attorney General Jason Miyares issued a formal opinion on July 10 clarifying that the budget language doesn't alter the legal status of marijuana possession. The four-page opinion states that appropriations riders "cannot amend substantive law" and that the reference to § 18.2-250.1 was a "scrivener's error" with no legal effect.

The opinion directs state and local law enforcement to continue applying the adult-use possession limits established in 2021:

• Up to one ounce of marijuana in public
• Up to four plants per household for personal cultivation
• Possession remains illegal for individuals under 21

Commonwealth's attorneys in Fairfax, Richmond, and Norfolk had paused prosecution of pending possession cases pending the AG's guidance. All three jurisdictions resumed normal case processing on July 11.

How the Error Entered the Budget

The drafting mistake likely originated in a template copied from the 2020-2022 budget cycle. According to two sources familiar with the drafting process, legislative staff used prior-year appropriations language as a baseline when drafting the DCJS funding section. The 2020 budget predated the 2021 legalization statute. So the old statutory reference carried forward.

The Virginia Division of Legislative Services, which provides technical drafting support to the General Assembly, didn't flag the outdated citation during its review. A spokesperson for the division declined to comment on internal quality-control procedures.

Budget bills in Virginia typically run 400-plus pages and contain hundreds of statutory cross-references, creating ample opportunity for this kind of error to slip through undetected by even careful reviewers. The 2026-2028 budget passed both chambers with bipartisan support in late June, with final votes of 28-12 in the Senate and 64-35 in the House.

Legal Impact on Pending Cases

Defense attorneys in at least six jurisdictions filed motions citing the budget language between July 8 and July 10, seeking dismissal of possession charges. All motions were denied following the Attorney General's opinion, though two defendants have indicated they'll appeal the rulings to circuit court.

The Virginia Public Defender's office issued internal guidance advising staff attorneys not to pursue the implied-repeal argument in future cases. The guidance, obtained by CannIntel, states that "the AG's opinion, while not binding on courts, reflects the overwhelming legislative intent to preserve the 2021 framework."

No Virginia court has ever recognized an appropriations rider as capable of amending criminal statutes, making the implied-repeal theory a long-shot argument from the start.

One case remains active in Henrico County General District Court, where a defendant is challenging the AG opinion's legal weight. A hearing is scheduled for July 22.

Correction Bill Likely in 2027 Session

Legislative leadership has signaled that a technical corrections bill will address the statutory reference when the General Assembly reconvenes in January 2027. Delegate Paul Krizek, chair of the House Appropriations Committee, told reporters on July 11 that the error "will be cleaned up in the first week of session."

Technical corrections bills are routine vehicles for fixing drafting errors, citation mistakes, and outdated cross-references. They typically pass without debate. The 2025 session included 14 such corrections across various code sections.

Senator Adam Ebbin, a longtime advocate of marijuana reform, said the incident underscores the need for better quality control in the budget drafting process. "This was a close call," Ebbin said in a statement. "We can't afford ambiguity on issues that affect thousands of Virginians."

No Impact on Retail Licensing Timeline

The budget confusion has no bearing on Virginia's ongoing effort to launch licensed retail sales, which remain on hold pending further legislative action. The 2021 legalization statute authorized possession and home cultivation but deferred the creation of a commercial market. Governor Glenn Youngkin has opposed retail sales. The General Assembly hasn't advanced enabling legislation.

Virginia Cannabis Control Authority, the agency tasked with eventual market oversight, continues to operate in a limited capacity focused on medical cannabis regulation. The authority's budget allocation in the 2026-2028 act was unchanged by the disputed language.

For full background on this story, see the CannIntel topic hub on Virginia marijuana laws.

What Comes Next

The next milestone is the July 22 Henrico County hearing, which could produce the first judicial opinion on the budget language. If the circuit court sides with the defendant, the case would likely proceed to the Virginia Court of Appeals, creating a potential split with the Attorney General's position.

More likely: the court will defer to the AG opinion and the technical corrections bill will quietly close the chapter when session opens in five months. This was a drafting error, not a policy shift. Legal consensus has already formed around that view.