West Virginia Marijuana Laws

Key Points

• Medical cannabis has been legalized in West Virginia for qualifying patients, but recreational weed remains illegal. All adult-use marijuana activities, including sale, processing, use, and distribution, are prohibited
• Only state-licensed medical cannabis can sell cannabis to qualifying patients who must be registered under the West Virginia Medical Cannabis Program
• Patients cannot grow their own cannabis at home. Only licensed growers can legally cultivate marijuana plants in West Virginia
• Marijana edibles are currently prohibited in West Virginia

Is Marijuana Legal in West Virginia?

Yes, but only medical marijuana is legal in West Virginia. The use of cannabis for recreational purposes is currently prohibited in the state. Medical marijuana became legal in 2017 when Governor Jim Justice signed Senate Bill 386 (SB 386). The passage of SB 386 created the West Virginia Medical Cannabis Act upon which the state's medical marijuana program was built. A person must be diagnosed with at least one of the debilitating medical conditions stipulated in the state's Medical Cannabis Act to qualify for medical cannabis. The Office of Medical Cannabis (OMC) regulates medical cannabis in West Virginia. Under the state's Medical Cannabis Act, qualifying patients may only purchase up to a 30-day supply of medical marijuana from state-licensed medical cannabis dispensaries.

West Virginia Marijuana Laws in 2024

A number of marijuana bills were introduced in the West Virginia legislature recently to modify the state’s medical marijuana laws. Most of them are still pending at various levels of the legislature. They include the following:

Senate Bill 32

Senate Bill 32 was filed for introduction on 12th January 2022 and is currently with the Senate Health and Human Resources Committee. It seeks to amend and reenact Section 16A-3-2 and Section 16A-3-3 of the West Virginia Code to allow medical marijuana to be prescribed in edible form. The West Virginia Medical Cannabis Act currently prohibits edible cannabis. SB 32 aims to remove this restriction preventing medical cannabis from being prescribed in edible form. However, edible cannabis would not be made in the shape of a fruit, animal, human, or any shape that may entice children.

Senate Bill 90

Introduced in the Senate on 12th January 2022, Senate Bill 90 seeks to amend and reenact Section 60A-4-401 of the West Virginia Code. If passed, SB 90 would limit the penalty for marijuana possession to a maximum of $1,000 without incarceration. This bill is currently with the Senate Judiciary.

Senate Bill 85

Senate Bill 85 aims to change a simple cannabis possession offense from a misdemeanor crime to a civil violation. It was introduced in the Senate in January 2022 and is currently with the Senate Judiciary Committee.

House Bill 2060

Introduced in the House in January 2022, House Bill 2060 seeks to amend Section 60A-4-401 of the West Virginia Code to reduce the criminal penalty approved for possessing small amounts of cannabis or marijuana paraphernalia. The bill is currently with the House Health and Human Resources Committee.

House Bill 2517

HB 2517 would remove cannabis as a tested substance from the screening requirements of the West Virginia Alcohol and Drug-Free Workplace Act if passed into law. It was introduced in the House in 2022 and was referred to the House Workforce Development Committee, where it is currently pending. House Bill 2517 seeks to amend and reenact Section 21-1D-2 of the West Virginia Code.

House Bill 3205

House Bill 3205 seeks to amend and reenact Section 16-A-15-4 of the West Virginia Code. If enacted, it would clarify provisions relating to medical cannabis use as applied to employers in West Virginia. Similarly, it would shed light on federal requirements of certain employers to allow employees to perform their duties while using medical cannabis when such employees would otherwise be refused employment for cannabis use. This bill is currently pending at the House Workforce Development Committee.

Senate Bill 88

SB 88 was introduced in the Senate in January 2023 to permit the prescription of medical marijuana in edible form. It was referred to the Senate Health and Human Resources Committee, where it is still pending.

House Bill 2756

This bill is currently pending at the House Judiciary Committee, and it seeks to amend Section 16A-8-1 of the West Virginia Code to permit the reporting of medical cannabis to the state's controlled substance monitoring database.

Senate Bill 167

This bill was introduced in January 2023 and is currently pending at the Senate Judiciary Committee. It seeks to legalize the personal possession and use of cannabis by adults. Also, SB 167 aims to authorize local sales and excise tax on marijuana. If enacted, it would allow counties to elect whether they want to permit marijuana sales and production within their jurisdictions

Senate Bill 320

These bills were introduced in the Senate in January 2023, and both seek to authorize the West Virginia Department of Health and Human Services to pass a legislative rule concerning the dispensaries under the state's Medical Cannabis Program.

Senate Bill 521

Senate Bill 521 was introduced in January 2023. It seeks to improve the safety of patients registered in the West Virginia Medical Cannabis Program by authorizing licensed medical marijuana processors to manufacture medicinal marijuana in edible form for sale to cannabis patients by licensed dispensaries.

House Bill 2091

This bill seeks to legalize marijuana for adults aged 21 years and older in West Virginia. If passed, HB 2091 would permit the possession of up to 1 ounce of marijuana and cannabis products by adults.

House Bill 2238

House Bill 2238 aims to allow the cultivation of up to 10 marijuana plants with no more than five mature plants for personal use by registered qualifying cannabis patients. It is currently pending at the House Agriculture and Natural Resources Committee.

House Bill 2255

If enacted, House Bill 2255 would allow no more than two licensed laboratories to conduct cannabis testing under the West Virginia Medical Cannabis Act.

House Bill 2267

HB 2267 seeks to permit eligible persons in West Virginia to possess and smoke medical cannabis.

House Bill 2318

Currently pending at the House Health and Human Resources Committee, HB 2318 seeks to permit attending physicians to use their professional assessment to certify patients for medical marijuana therapy once they (physicians) determine that such patients would benefit from medical cannabis use.

Timeline of Cannabis Law in West Virginia

• 2017 - Medical marijuana became legal in West Virginia following the passage of Senate Bill 386 into law
• 2018 - The West Virginia Medical Cannabis Act became effective
• 2019 - West Virginia enacted House Bill 2583 to select a financial institution to provide banking services for the state's Medical Marijuana Program
• 2023 - Senate Bill 167 and House Bill 2091 were introduced in the Senate and House respectively. They seek to legalize recreational marijuana for adults aged 21 years and older in West Virginia

Federal Legalization of Weed in 2024

In 2022, President Joe Biden issued an official statement pardoning individuals with prior federal offenses of small cannabis possession. Many states have legalized cannabis for medical or recreational purposes or both, but the substance remains illegal at the federal level. However, several attempts are concerted toward removing weed from the list of controlled substances in the United States Controlled Substances Act (CSA) and legalizing it at the federal level. They include the following:

Preparing Regulators Effectively For A Post-Prohibition Adult-Use Regulated Act Of 2023 (PREPARE Act Of 2023)

Although it would not directly legalize weed at the federal level, the PREPARE Act of 2023 (HR 2598) seeks to establish a commission on the federal regulation of marijuana to study a conceivable and quick pathway to the federal regulation of weed. Specifically, this bill aims to form a commission that can advise the federal government on how to develop a regulatory framework should the federal prohibition on marijuana end abruptly.

Cannabis Administration Opportunity Act (CAOA)

Introduced in the Senate in 2022, the CAOA (S. 4591) seeks to do the following in its bid to legalize marijuana at the federal level:

• Allow persons who are at least 21 years of age to purchase and use marijuana for recreational purposes
• Create a Center for Cannabis Products under the United States Food and Drug Administration (FDA) to regulate the sales, distribution, production, and labeling of cannabis products
• Remove marijuana from the schedule of controlled drugs under the Controlled Substances Act
• Permit states that prohibit marijuana activities within their borders to continue the ban but not restrict the movement of cannabis products through their states between states that have legalized marijuana
• Sustain the current federal laws banning the trafficking of marijuana in states that have legalized cannabis but have marijuana trafficking laws
• Allow physicians with the Department of Veterans Affairs to recommend medical cannabis to veterans
• Expunge criminal records for persons with simple federal cannabis convictions within one year of enacting CAOA and allow individuals currently incarcerated for marijuana crimes to petition the courts for relief
• Impose a federal excise tax on marijuana businesses
• Ban drug testing for federal employment unless the job role is sensitive, for instance, if it involves national security

Marijuana 1-To-3 Act Of 2023

The Marijuana 1-to-3 Act of 2023 (HR 610) was introduced in the House in January 2023, and it seeks to move marijuana from its current position (Schedule I) to a lower schedule of the Controlled Substances Act CSA). Precisely, HR 610 wants the United States Drug Enforcement Administration (DEA) to reposition cannabis from Schedule I to Schedule III of the CSA. Under the CSA, a Schedule III controlled substance is considered to have less potential for abuse, low dependence if abused, and is currently accepted for medical use. On the other hand, a Schedule I drug is believed not to have an accepted medical use with a high potential for abuse. It is subject to various penalties (civil and criminal) under the CSA.

Secure And Fair Enforcement Banking Act Of 2023 (SAFE Banking Act Of 2023)

Due to the federal ban on marijuana, many financial institutions cannot serve licensed marijuana businesses in states that have legalized weed. Currently, such enterprises cannot open bank accounts in their business names, accept credit cards for payments, or access other primary banking services.

Introduced in the Senate in April 2023, the SAFE Banking Act of 2023 (S. 1323) seeks to ensure protection for federally regulated financial organizations offering financial services to state-licensed cannabis businesses. If enacted, S. 1323 will prohibit a federal banking regulator from penalizing a financial institution for providing banking services to such businesses. Sponsors believe the passage of this bill will pave the way for federal legalization of weed. Under this Act, proceeds made from marijuana transactions by state-licensed cannabis establishments would no longer be considered proceeds from illicit activities. They would not be subject to anti-money laundering laws. This bill is currently pending at the Senate Committee on Banking, House, and Urban Affairs.

Marijuana Opportunity, Reinvestment, And Expungement Act (MORE Act)

The MORE Act 2020 and MORE Act 2022 were cannabis reforms geared toward legalizing marijuana at the federal level, but both did not advance. They were introduced in the 116th and 117th Congress, respectively, and aimed to eliminate penalties for federal marijuana crimes and remove cannabis from the Schedule I drug list in the Controlled Substances Act.

Can I Use Cannabis in West Virginia?

It is illegal to use marijuana for recreational purposes in West Virginia. However, qualifying patients registered under the West Virginia Medical Cannabis Program with the following debilitating conditions can use cannabis for medical purposes in the state:

• Cancer
• Neuropathies
• Multiple sclerosis
• Huntington's disease
• Amyotrophic lateral sclerosis
• Position status for HIV/AIDS
• Injury to the spinal cord's nervous tissue with an objective neurological indication of intractable spasticity
• Sickle cell anemia
• Post-traumatic stress disorder (PTSD)
• Intractable seizures
• Chronic pain
• Terminal illness that is defined as a medical prognosis of life expectancy of no more than one year if the ailment runs its normal course

How The Legal Sale Of Cannabis In West Virginia Happens

A cannabis dispensary license is required to sell medical marijuana in West Virginia. The sale of recreational weed remains illegal in the state. Under the West Virginia Medical Cannabis Act, it is currently illegal to sell cannabis in edible form. Only the following forms of marijuana can be sold at state-licensed medical cannabis dispensaries:

• Tincture
• Oil
• Topical, including ointments, gels, and cream
• Pill
• Dermal patch
• Liquid
• Any other form considered medically suitable for consumption by vaporization, except plant form or dry leaf, until both become acceptable under the West Virginia Bureau of Public Health rules

Only registered qualifying patients and caregivers can purchase medical cannabis from licensed medical marijuana dispensaries in West Virginia. Dispensaries can sell up to a 30-day supply of medical marijuana to them upon presenting their state-issued medical cannabis cards. Marijuana products sold by a West Virginia-licensed medical cannabis dispensary must be identified by the name of the dispensary. Also, the percentage of THC (tetrahydrocannabinol) and CBD (cannabinol) in the product must be displayed on the product label.

In West Virginia, licensed medical cannabis dispensaries must sell medical marijuana or cannabis products to patients or caregivers in sealed, child-resistant, and labeled packages. The labeling must contain information such as the packaging date, the amount of doses contained in the product, and a warning statement. Also, after selling medical cannabis, dispensaries must issue a safety insert to patients providing the following information:

• How to prevent medical marijuana misuse by minors or other consumers
• The appropriate methods of using medical cannabis in individual doses
• Any potential harm that may result from using medical marijuana

Licensed medical cannabis dispensaries in West Virginia track marijuana sales using an electronic inventory tracking system using Metrc.

Penalties for Marijuana-related crimes in West Virginia

The following are the penalties for marijuana-related crimes in West Virginia:

Marijuana Possession In West Virginia

Deliberately possessing non-medical cannabis in West Virginia is illegal, and such an offense is considered a misdemeanor. For a first offense, It is punishable by up to a $1,000 fine and/or between 90 days and six months of incarceration. First-time offenders may be able to get deferred prosecution. They will plead guilty to have the charges dismissed once they complete their probation requirements successfully. Second-time offenders face up to a one-year jail term and/or up to a $2,000 fine.

Marijuana Sale And Distribution In West Virginia

The illegal sale or distribution of any amount of marijuana in West Virginia is a felony punishable by a maximum of $15,000 and/or a jail sentence of not less than one year and no more than five years. Also, any adult aged 21 years or over who sells cannabis to a minor under 18 or an adult aged 18 years or older selling weed within 1,000 feet of a school commits a felony. The offense is punishable by a mandatory two years of incarceration.

Marijuana Possession With The Intent To Distribute In West Virginia

Anyone caught trafficking marijuana into West Virginia with the intent to distribute or deliver them risks up to a $15,000 fine and between one year and five years prison sentence.

Marijuana Cultivation In West Virginia

The cultivation of marijuana plants without the relevant license in West Virginia attracts up to a $1,000 fine and/or prison sentence of between one and five years.

Marijuana Paraphernalia In West Virginia

The sale or possession with the intent to sell marijuana paraphernalia in West Virginia is considered a misdemeanor offense. Offenders are usually punished with no more than a $5,000 fine and/or up to six months of incarceration.

Driving Under The Influence Of Marijuana In West Virginia

The first offense for DUI of marijuana in West Virginia is a misdemeanor punishable by up to six months of incarceration, between $100 and $500 fine, and/or a six-month driver's license revocation (90 days mandatory). Second-time offenders within 10 years of the first offense face a 10 years license revocation (5 years mandatory), between six months and one year of incarceration, and/or a fine of between $1,000 and $3,000. For a third time offense within 10 years of the first, the offender commits a felony punishable by a fine of between $3,000 and $5,000, life driver's license revocation (10 years mandatory), and/or a jail term of between one to three years.

Confiscation Of Assets For Marijuana Offenses In West Virginia

In West Virginia, marijuana law violators may forfeit assets such as real estate, vehicles, money, and other valuables, especially those involved in selling, transporting, or processing cannabis, to the state authorities.

Remedies For Defendants Who Violate Marijuana Laws In West Virginia

It is best to hire a marijuana defense attorney if a person is accused of or being prosecuted for a marijuana offense in West Virginia. Otherwise, during prosecution, the defendant can say they were illegally searched and arrested by law enforcement. Similarly, the defendant could claim that law enforcement violated their rights during the arrest. Furthermore, if the arresting officer did not follow due process during the arrest, the offender could argue that the evidence submitted against them was forged.

What is West Virginia’s Cannabis History?

Every effort to legalize marijuana in West Virginia before 2017 failed until February 2017, when Senator Ojeda sponsored Senate Bill 386 and introduced it in the Senate. In April 2017, Governor Jim Justice signed Senate Bill 386, creating the West Virginia Medical Cannabis Act and legalizing medical cannabis for individuals with certain debilitating medical conditions. The Medical Cannabis Act went into effect in July 2018. However, the legal sale of medical marijuana did not start until November 2021. SB 386 established the West Virginia Medical Marijuana Registry and initially intended for medical cannabis sales to begin in July 2019. For various reasons, including the lack of funding, sales did not start in 2019 as anticipated.

Another setback that contributed to launching the West Virginia Medical Cannabis Program and legal sales of medical cannabis in 2019 was the unavailability of banking services for the program. In March 2019, the state governor signed House Bill 2583 to allow credit unions to bid for the state's account. The selected credit union was authorized to provide banking services to the West Virginia Medical Marijuana Program. Attempts to decriminalize cannabis in the state in 2019 failed. The legal sale of medical cannabis eventually began in November 2021. In January 2023, Senate Bill 167 was introduced by Senator Caputo. The bill seeks to legalize the use, sale, and production of recreational cannabis. It is currently pending at the Senate Judiciary Committee. A similar bill (HB 2091) was introduced in the West Virginia House on January 11, 2023. Sponsored by Delegate Walker, it was filed and then referred to the House Committee on Health and Human Resources.

What are Restrictions on Cannabis in West Virginia?

The following are some restrictions on cannabis in West Virginia:

• It is illegal to possess any amount of non-medical cannabis. Only patients with certain debilitating conditions can legally access cannabis in West Virginia, and they must be registered under the state’s Medical Cannabis Program
• Qualifying cannabis patients any only purchase up to a 30-day supply of medicinal marijuana
• West Virginia prohibits the consumption of edible cannabis under its Medical Cannabis Program. The only available forms of medical marijuana are oils, pills, liquids, tinctures, topicals, and dermal patches
• Qualifying patients may not cultivate cannabis in their residences for personal use
• Only licensed persons or entities can engage in commercial marijuana activities, including the cultivation, selling, and processing of cannabis, in West Virginia
• Cannabis may only be consumed in private residences. West Virginia prohibits the consumption of marijuana in public spaces
• The delivery of marijuana, including medicinal cannabis, is prohibited in West Virginia