Underage Vape Citation on School Property in West Virginia

Attorney Answer

There is no West Virginia statute that makes it a crime for a minor to possess a vape. Before anything else, find out exactly what code section or city ordinance you were actually cited under — because "possession underage" may not be an offense that exists.

Chapter 16, Article 9A of the West Virginia Code puts the prohibitions on sellers, not on minors. W. Va. Code § 16-9A-3 is "Sale or gift of tobacco products to persons younger than 21 years of age," and W. Va. Code § 16-9A-7 governs enforcement and compliance inspections directed at retailers. Neither creates a possession, purchase, or use offense for a person under 21.

The one school-related provision in that article is W. Va. Code § 16-9A-4, "Use of tobacco products, in certain areas of certain public schools prohibited; penalty." It applies to any person who uses tobacco products in a school building or on school grounds used for instructional purposes, and it carries a fine of not less than $1 nor more than $5. That is the entire statutory penalty, and it is about use, not possession.

So if you are expecting significant fines, check the source. What you received may be a municipal ordinance citation, a school disciplinary referral, or a juvenile petition based on something other than Article 9A. Those are three different things with three different processes, and you cannot prepare until you know which one you have.

Now your actual question, about the nicotine and vaping awareness class. Straight answer: it has no statutory effect. No West Virginia statute reduces a penalty because a student completed an awareness course. But it can genuinely help in the two places where a human being is exercising discretion — with the school, and with whoever decides whether to file, divert, or dismiss.

School discipline comes from county board policy. W. Va. Code § 18A-5-1 gives teachers and principals authority over students and the authority to exclude a student "who is guilty of disorderly conduct; who in any manner interferes with an orderly educational process," and provides that "Each county board is solely responsible for the administration of proper discipline in the public schools of the county and shall adopt policies consistent with the provisions of this section to govern disciplinary actions." Vaping is not among the offenses that trigger mandatory suspension or expulsion under West Virginia law, which means the principal and the county policy have room to work with — and a student who has already completed a class is an easier student to be lenient with.

What you can do

1. Ask for a copy of the citation or referral and keep it. The code section or ordinance number is printed on it, so keep or photograph the document rather than copying the number out. If a school official issued it, ask which board policy provision it is under. 2. Show that paperwork to a parent or guardian and to a juvenile defense attorney. Many counties provide juvenile defense at no cost — ask the court clerk how to request it. 3. Yes, ask your principal about a nicotine and vaping awareness class, and complete it before any hearing or court date. Get a signed certificate. 4. Ask the school in writing for the discipline policy, the specific rule you are accused of violating, and the appeal process. 5. Do not pay any fine before you know what it is for. Paying a citation can be treated as admitting the offense. 6. If you are given a court date, do not miss it, and bring the completion certificate with you. 7. Do not discuss the incident with school staff or officers without a parent present.