Affirmative defense defeats or mitigates the legal consequences of the defendant’s otherwise unlawful conduct. While it will not be legal, technically, to possess the oils, a patient or their caregiver would be able to present their registration if they were stopped by law enforcement or in a court of law as their defense for possession of the oil.
Yes. 18.2-250.1(C) states, “In any prosecution under this section involving marijuana in the form of cannabidiol oil or THC-A oil as those terms are defined in § 54.1-3408.3, it shall be an affirmative defense that the individual possessed such oil pursuant to a valid written certification issued by a practitioner in the course of his professional practice pursuant to § 54.1-3408.3 for treatment or to alleviate the symptoms of (i) the individual’s diagnosed condition or disease or (ii) if such individual is the parent or legal guardian of a minor or of an incapacitated adult as defined in § 18.2-369, such minor’s or incapacitated adult’s diagnosed condition or disease. If the individual files the valid written certification with the court at least 10 days prior to trial and causes a copy of such written certification to be delivered to the attorney for the Commonwealth, such written certification shall be prima facie evidence that such oil was possessed pursuant to a valid written certification.”