In Virginia, marijuana possession is a misdemeanor, and selling or possessing with intent to distribute over 1/2 ounce to five pounds of marijuana is a Class 5 felony, incarcerable up to but hashish oil possession is a Class 5 felony incarcerable up to ten years in prison. Such incarceration exposure pales in comparison to the much more serious penalties for hashish oil, which as a Schedule I drug is a Class 5 felony to possess, and carries five to forty years in prison to sell or possess with intent to distribute.

How is this draconian state of hash oil affairs possible, when hashish oil comes from marijuana?

Virginia Code § 54.1-3446 designates hashish oil as a Schedule 1 controlled substance, and references its other names as hash oil; liquid marijuana and liquid hashish. Other street names for hashish oil are dabs, wax and shatter. 

Hashish oil squarely fits under Virginia’s statutory definition of marijuana EXCEPT for that oily cannabinoid-containing marijuana extracts with 12 percent or more of tetrahydrocannabinol (“THC”) by weight fall outside the marijuana definition and instead fall under the hashish oil definition. Specifically: “Hashish oil” means any oily extract containing one or more cannabinoids, but shall not include any such extract with a tetrahydrocannabinol [THC] content of less than 12 percent by weight.” Va. Code § 54.1-3401.

The same oily cannabinoid-containing extract with less than 12 percent THC will fall under the marijuana definition so long as the remainder of the marijuana definition is satisfied: “The term ‘marijuana’ when used in this article means any part of a plant of the genus Cannabis… Marijuana shall not include any oily extract containing one or more cannabinoids unless such extract contains less than 12 percent of tetrahydrocannabinol by weight…” Va. Code § 18.2-247(D).

Consequently, a key attack against hashish oil prosecutions will be to challenge whether the prosecution has proven that it is hashish oil in the first place, namely whether the substance is (1) an oily (2) cannabinoid-containing (3) extract (4)  with a THC content of less than 12 percent by weight.

Drug chemists might ordinarily test-check only a portion of alleged drugs submitted by police, because the chemists usually are only checking for any amount of unlawful drugs and for total weight of the alleged drug. Drug chemists might have a trickier problem by having to determine the weight of the THC contained in alleged hash oil to figure out whether the above-referenced 12 percent threshold is met. If the THC is infused throughout the oil, how does the drug chemist figure out the weight of the THC by itself?

As expensive as it might be to hire a drug chemist for the defense, that can be particularly important with hashish oil defense, to challenge the 12% threshold.

In the meantime, consumers and sellers of dabs, wax, and other marijuana/cannabis extracts are on notice of Virginia’s harsh hashish oil penalties. Police are not pharmacy experts, and can have a penchant for overcharging criminal defendants and letting prosecutors sort it out. However, prosecutors are not drug chemists either, and these days, the Virginia Department of Forensic Science — which is tasked with testing for hashish oil and other allegedly unlawful drugs for the prosecution — is backed up for months in testing alleged controlled substances. The DFS defines hashish oil as “an oily extract containing one or more cannabinoids with little, if any, plant material present and containing 12% or more THC.” DFS Controlled Substance Procedure Manual at 6 (2016). While of course the DFS may not broaden the Virginia Code’s hash oil definition, important here is to seize on the DFS’s assertion that hashish oil contains “little, if any, plant material.” Therefore, it is important for the criminal defense to look for instances where more than only a little plant material is present therein.

Hashish oil carries much more severe penalties than marijuana in Virginia. The criminal defense battle lines have been drawn.