Claire Gastañaga ACLU Virginia

Claire Gastañaga, executive director of the ACLU of Virginia (2017 photo).

The state Senate approved a bill Friday that would prohibit search and seizures based solely on the odor of marijuana, which activists say is a step toward ending adverse enforcement against marginalized communities.

Senate Bill 5029, introduced by Sen. Louise Lucas, D-Portsmouth, passed on a 21-15 vote. 

Chelsea Higgs Wise, executive director of Marijuana Justice, a nonprofit pushing for the statewide legalization of marijuana, said her group is excited to see the bill move forward.

“This is a small but important step to decriminalizing Black and brown bodies of being targeted by this longtime policing tool, which was really created by politicizing the war on drugs,” Higgs Wise said.

Black people are more than three times as likely to be arrested for marijuana possession in Virginia compared to white people, according to 2018 data from the ACLU. Even after marijuana was decriminalized in July, Higgs Wise said police stops initiated on the smell of marijuana continue to adversely affect minority groups.

“The odor of marijuana is something that our undocumented community is anxious about because it’s life or death and separation from their families,” Higgs Wise said.

Higgs Wise said there is still “a long way to go” before demands for full marijuana legalization are met, but right now she wants legislators to focus on ending the enforcement of remaining marijuana-related penalties.

Marijuana decriminalization legislation approved by the General Assembly earlier this year went into effect in July. Possession of up to an ounce of marijuana results in a $25 civil penalty, reduced from a $500 criminal fine and 30 days in jail for having up to half an ounce.

Higgs Wise said true reform goes further: clearing records, releasing people jailed for marijuana offenses and eliminating the $25 fine. 

“All of that has to stop to meet the full demand of legalization and fully, truly decriminalizing marijuana and Black and brown bodies in the eyes of the police,” Higgs Wise said.

The Virginia Association of Chiefs of Police opposes the bill, said Executive Director Dana Schrad. 

“Enacting this type of legislation allows and promotes smoking of marijuana while operating a motor vehicle, which is a fundamental disregard for maintaining a safe driving environment for motorists,” Schrad said in an email.

Other amendments in the bill reduce certain traffic violations from primary to secondary offenses, which Schrad said could make it difficult for officers to issue citations on the road, creating risks for other drivers.

The bill, and another in the House of Delegates, reduce other traffic penalties from primary to secondary offenses, such as driving with tinted windows or without a light illuminating the vehicle’s license plate.

Claire Gastañaga, executive director of ACLU Virginia, said police have “gotten comfortable” with using the smell of marijuana as a pretext to stop and frisk.

“Occasionally, they’ll find evidence doing that of some other criminal activity, but many times they don’t,” Gastañaga said. “As a consequence, it provides an excuse for essentially over-policing people who have done nothing wrong.”

Gastañaga said the end of the overcriminalization of Black and brown people will come after legislators legalize marijuana and commit to reinvesting equitably in those communities. A resolution approved by the General Assembly earlier in the year directed the Joint Legislative Audit and Review Commission to study and make recommendations for how the commonwealth should legalize marijuana by 2022.

Gastañaga said SB 5029 sends a strong message to the police and the public.  “This would take [away] that pretextual tool for police stopping people on the street, or for demanding to search a vehicle."

The bill needs approval from the House of Delegates and a signature from Gov. Ralph Northam before it can become law, which would take effect four months after the special session adjourns. 

House Bill 5058 similarly aims to end police searches based on the odor of marijuana. The bill, introduced by Del. Patrick Hope, D-Arlington, was reported Wednesday from the House Courts of Justice committee by a vote of 13-7.

“A disproportionate number of people pulled over for minor traffic offenses tend to be people of color,” Hope said during the committee meeting Wednesday. “This is a contributor to the higher incarceration rate among minorities.”

Fairfax Commonwealth’s Attorney Steve Descano said during Wednesday’s meeting that when people feel they are being targeted by the police, they’re less likely to report crimes or act as witnesses in prosecutions. He said ending such traffic stops is necessary to reform the criminal justice system and make communities safer. 

“Reforming our criminal justice system means bringing back legitimacy to it,” Descano said.

(14) comments


the same for alcohol and meth as well -- but why stop there ?

Wake Up & Smell The Coffee!

In life there’s a certain degree of trust we give to others. Trust in our day care providers, medical professionals, law enforcement, etc. A small amt. of “entrusted ones” use their position to carry out nefarious deeds. The is the exception, not the rule. I don’t support SB 5029. Not every police stop/tool is used maliciously.

Comment deleted.
Change Craford

Hey Bigfoot, I bet you are buying papers to roll your joints too in the middle of the night. Quit being a racist/bigot and grow up. It's not about party, but about country since you can't seem to comprehend in your Trump deplorable world.


You missed the point of the bill. It's not to police drivers that are under the influence. It's to stop police from searching the car just because they smell it in the car or on someone. Police just use it as an excuse to search without a warrant. Where are all the constitutionalists? Republicans should care about the constitution and EVERYONE's rights.


So if police stop a car and there is marijuana smoke in vehicle, they are to ignore it. If they smell alcohol on someone's breath, they should ignore it. REALLY! Lets just let everyone drive, drunk or impaired. Hope it's not you should they have an accident and kill someone. If police smell marijuana smoke, they should be able to search a vehicle, just like if someone had been drinking, coming from a bar. It's to save lives. This is not a political problem. It's everyone's problem!

John Stuart Mill

Do people lie? Have the police always told the truth? Do you like to give up your rights to people who may lie? Do you want me to do all of your research for you or can you google that yourself?

You are missing the point.

John Stuart Mill

Thank you. Other people do not fully realize that the formulaic "I smelled an ordor consistent with marijuana" is a loophole that police use to justify searches of vehicles that would normally be considered illegal.

I dont condone getting high and driving, nor drinking and driving, nor popping pills and operating heavy machinery. But this legislation in not about that. It is exactly about what you said, but people see the headline and immediately comment.

Lynne June

The logic in this bill is just flawed. No one should driving while impaired under legal or illegal substances and putting themselves or others at peril, period.


This is wrong! I guess you can drive when you are impaired by marijuana. If the smell of smoke is grass, then you could be impaired by the drug. It's okay to drive. But if you smell alcohol or see cans in a car while on a traffic stop, you can take a person out of a car and have them "walk the line". What part of this don't you get? I don't care the color of your skin, you don't drink and drive and you don't smoke weed and drive. All "races" do this on both accounts. If you are stopped for traffic violation and marijuana smoke is in the vehicle, it should be treated like "alcohol cans/bottles" in a vehicle!!

John Stuart Mill

Read the article.

Gastañaga said SB 5029 sends a strong message to the police and the public. “This would take [away] that pretextual tool for police stopping people on the street, or for demanding to search a vehicle."

A tactic police have been doing for years is pulling over someone, say they "smell" marijuana, bring over a dog that responds to nonverbal commands (such as tapping on parts of the car or other cues) leading to an arrest. During the arraignment, the defendant is pressured to plead guilty as it would be lesser of two evils given the stakes and ability to get a defense lawyer. Unfortunately, minorities have gotten the short end of the stick on this one.

Also, the vast majority of smokers arent hotboxing while driving. So dont expect Cheech & Chong levels of smoke rolling out of the car. Statistically, you are more likely to find alcohol related incidents as a prime driver of criminal activity vice marijuana.

Deez Nutz

Great idea I love it.

Mike Vasquez

How racist to assume people of color must be weed smokers... Guess we're only good for rescuing by white people. Oh save us white people, our moral superiors!

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