HAMPTON, Va. (WAVY) — What is the future of marijuana in Virginia?

It is a question many are asking after legislation to legalize and decriminalize marijuana in Virginia failed — and it’s not the first time. 

Many eyes are on the future of weed, including those of a Hampton mother, who says her priority is medicinal marijuana for her daughter, Madison. 

Melanie Davis says she will do anything for her daughter with cancer. Madison has had 10 brain surgeries for ependymoma, and her first diagnosis came at 5 years old. The family has traveled to Alabama, Georgia and Philadelphia for trials, and now she’s doing something else to make her daughter comfortable. She’s giving her medical cannabis oil.

“If we are willing to give her radiation, if we are willing to give her chemo that we know is going to make her lose her hair, we know it’s going to make her vomit, then why would we not try something you can grow in your backyard that people have been using since 8,000 BC” said Melanie Davis. 

The Virginia House and Senate have unanimously passed two bills to expand Virginia’s medical cannabis oil program for certain conditions. The legislation, however, does not make possession legal.  Maddie and her mom are on a Board of Pharmacy registry that is designed to give her some legal defense. 

According to Virginia NORML, 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. To assert the affirmative defense, an unexpired valid written certification issued from a board-registered physician and a current active patient and/or caregiver registration issued by the Board of Pharmacy is necessary.

According to Virginia NORML, the Virginia House and Senate have unanimously passed HB1251 and SB726, respectively, to expand Virginia’s medical cannabis oil program from the single qualifying condition of intractable epilepsy to any diagnosed condition. The legislation provides an affirmative defense for possession, and does not make possession legal. 

“It’s an oil that ideally we put under her tongue, but she calls it her stinky medicine,” said Davis. 

Davis puts Maddie’s oil in a capsule, which she purchases on the internet. 

“We can’t be 100 percent sure that they are giving us what they say, but they get the smell right, they always get the smell right,” said Davis. “I can pull up 2,000 articles and scientific study and trials that shows that it works — absolutely.”

Meanwhile, Portsmouth Delegate Steven Heretick is focusing on marijuana reform in general. 

Heretick’s bill would have legalized use for adults over the age of 21, and set up a regulated system of cultivation facilities, manufacturing facilities, marijuana testing facilities and retail marijuana stores, taxing marijuana sales at 15 percent.  67 percent of revenue collected would have been put into Virginia’s general fund, and 33 percent of revenues would have been deposited into a “Retail Marijuana Education Support Fund” to be used for public education. Herretick calls it the first comprehensive bill for legalizing marijuana in Virginia history. 

MORE: Local delegate introduces bill to legalize marijuana in Virginia

MORE: Region’s only medical marijuana dispensary to open in Portsmouth

10 On Your Side sat down with Heretick in Richmond regarding his push to legalize marijuana.

“I don’t think this is going to be changing in Virginia anytime soon.” 

In January, his push was shot down before the bill even reached the full General Assembly this year. 

“It’s ironic that a good many of my colleagues here in the General Assembly have quietly told me that they agree with me, at least with respect to decriminalizing marijuana. I think they are concerned that if they come out publicly and support, that their voters will look at them differently.”

Opponents of marijuana legalization often cite the “gateway drug” theory, and that more marijuana could mean more traffic deaths. Even so, Melanie says her focus is the smiling face of Madison. 

“Right now there are 33 states and the District of Columbia in the country that allow medicinal marijuana and there are only 17 left,” Davis said. 

Governor Ralph Northam had supported decriminalization, even saying so in his recent State of the Commonwealth. Virginia has only allowed medical cannabis oils to be dispensed at just five dispensaries. 

Marijuana has been legalized for recreational use in 10 states and the District of Columbia.