Marijuana, also known as cannabis, remains a delicate legal issue. California legalized the medicinal use of marijuana in 1996 and adult recreational use in 2016. However, the Federal government, through the Controlled Substances Act, considers marijuana a dangerous drug (Title 21 Section 811). Under this Act, the Federal government maintains that the potential for abuse of cannabis is high, and the drug lacks any accepted medical use. The 1937 Marijuana Tax Act imposed prohibitive taxes for sale of marijuana, and the federal government continually maintains its condemnation of the plant.
California has, for a long time, been protecting adult personal use, medical use, and commercialization of cannabis. However, the state has several criminal charges relating to the production, sale, possession, or use of cannabis. If you violate any of the federal or California marijuana laws, you will need The San Diego Criminal Attorney to represent you in court. Whether your charges are for large-scale possession or unlawful personal use, we have the necessary experience to fight for you in any court in or around San Diego, CA. We will put up a strong defense to possibly dismiss your charges or reduce your fees, fines, and jail time.
Legalization of Marijuana in California
In 1996, California legalized medical marijuana and decriminalized possession of marijuana weighing under 28.5 grams. In 2016, the state further relaxed marijuana laws in line with the Adult Use of Marijuana Act, otherwise known as Proposition 64. If you are 21 years or older, the Act permits you to possess, purchase, or consume marijuana not exceeding 28.5 grams in your private residence or licensed establishments. The state lifted most marijuana-related criminal sanctions following the general election. However, licensing for legitimate production and selling of recreational marijuana started in January 2018. Also, the state has new cultivation taxes and a 15% excise tax on cannabis.
While consumption marijuana is lawful in California, you must understand the specific laws that regulate its use as well as the consequences of violating each law.
Section 11357 of the Health and Safety Code details the rules of possession of marijuana for personal consumption. Since January 1, 2018, you can legally possess a maximum of 28.5 grams of marijuana if you are 21 years or older. You can also lawfully possess not more than eight grams of hashish (concentrated cannabis). However, even when the amount is within the legal limit, consuming marijuana has some restrictions:
- You can only smoke or consume marijuana in private, and only if the owner of property consents. Therefore, your employer or your landlord is at liberty to prohibit you from consuming cannabis at work or in your rental property.
- You cannot consume marijuana in any place where the law prohibits tobacco smoking.
Possessing marijuana can be an infraction or a misdemeanor in the following instances:
- You are less than 21 years old,
- You possess marijuana that exceeds 28.5 grams, or concentrated cannabis exceeding eight grams, or
- You possess concentrated cannabis or marijuana within the premises of a K-12 school during an ongoing session.
Penalties for Unlawful Marijuana Possession
Possessing concentrated cannabis or marijuana when you are below 21 years is an infraction. The penalties for this offense are:
- Community service for ten hours and four-hour drug counseling if you are under 18 years, and the offense is your first,
- Six drug education hours and 20 community service hours for a second offense when you are below 18, or
- A maximum of $100 if you are 18 years or older,
Possessing concentrated cannabis weighing more than eight grams, or marijuana exceeding 28.5 grams:
- If you are 18 years or older, the offense is a misdemeanor punishable by fines not exceeding $500 and not more than six months in jail,
- If you are less than 18 years, the crime is an infraction punishable by community service and drug counseling,
Possessing marijuana in K-12 school grounds:
- The offense is a misdemeanor if you are 18 or more years. The punishment is a maximum of $250 for the first offense.
- If you are under 18, the offense is an infraction punishable by community service and drug counseling.
Cultivation of Marijuana
Section 11358 of the Health and Safety Code is California’s law on marijuana cultivation. Proposition 64 amended the code to allow you to:
- Plant a maximum of six marijuana plants,
- Ensure that you grow the plants indoors except where local laws permit outdoor marijuana planting, or
- Whether outdoors or indoors, your plants must be secured and away from minors.
Penalties for Illegal Cultivation of Marijuana
If you are under 21 years, it is an infraction to grow any marijuana:
- If you are younger than 18, you will have to perform community service and complete several drug counseling sessions,
- If you are 18 or older, but less than 21 years old you will pay a fine not exceeding $100, or
- As an adult, growing over six plants of marijuana is unlawful. Planting, growing, harvesting, drying or processing more than six living marijuana plants is a misdemeanor punishable by a maximum six-month jail term, not more than $500 in fines, or both,
You may face felony charges for cultivating over six marijuana plants if:
- You have at least two prior convictions for the same crime,
- You have a record of grave violent felonies,
- You are a registered sex offender, or
- In your cultivation activities, you violate particular state environmental law.
Possession with the Intent to Sell
Proposition 64 legalized marijuana sale by businesses that acquire and operate within the laws of state and local licensing. Therefore, possessing marijuana with the aim of selling without a license is an offense under Section 11359 of California’s Health and Safety Code, the state’s law on marijuana possession for commercial purposes.
Penalties for Unlicensed Possession of Marijuana for Sale
This offense is a misdemeanor whose penalties are:
- A county jail term not exceeding six months,
- Up to $500 in fines, or
- Both a fine and jail time
The offense becomes a felony if:
- You have at least two prior misdemeanor convictions for possessing marijuana for sale,
- You have at least one previous conviction for a serious violent offense. Such offenses include murder, sexual violence, gross vehicular manslaughter while intoxicated, any sex crime against a child younger than 14. Others are or sex crimes that require registration in the sex offenders registry, or
- Your offense is in connection to selling knowingly or attempting to sell to a person below 18 years.
For felony marijuana possession with intent to sell, the penalty is a jail term of 16 months, two years or three years.
Unlicensed Sale of Marijuana
Section 11360 of the Health and Safety Code is California’s law on the licensed sale of marijuana. Under this code, you can legally sell marijuana only if you have a license from the Bureau of Marijuana Control. Without a license, you will be committing a crime if you sell or transport marijuana for sale. Under Proposition 64, Code HS 11360 is the law that intends to proscribe a cannabis “black market.”
Penalties for Selling Marijuana without a License
If you are under 18, giving away, selling, or transporting marijuana is an infraction punishable by drug counseling and community service. Further, if you are 18 years or older, unlicensed selling or transporting marijuana for sale is a misdemeanor, and the penalties are:
- A fine not exceeding $1000,
- A six-month maximum term in county jail, or
- Both a fine and jail time
Selling or transporting marijuana for sale is a felony if you:
- Have a previous conviction for any crime in a list of especially grave violent crimes such as murder, gross vehicular manslaughter while intoxicated, sexual violence, sex crimes involving a minor aged less than 14 years, or sex crimes that require your registration as a sex offender,
- Have at least two prior HS 11360 convictions for sale and transportation of marijuana,
- Knowingly offer to furnish or sell, attempt to sell or sell marijuana to a person aged below 18, or
- Import, attempt or offer to import, or transport, attempt or offer to transport marijuana above 28.5 grams, or concentrated cannabis exceeding four grams.
Violating HS 11360 attracts a penalty of two, three, or four years in jail.
It is important to note that giving away or carrying marijuana without intending to sell is not an offense in California, provided that:
- You give away or carry 28.5 grams or less of marijuana, or a maximum of eight grams in concentrated cannabis, or
- Any person that you offer marijuana is at least 21 years old.
Sale of Marijuana to Minors
If you are at least 18 years old, selling cannabis to minors is a felony under Section 11361 of the Health and Safety Code. Proposition 64 does not change this law. Also, it is a felony under the same code to use minors in carrying, transporting, giving away, selling, administering, furnishing, peddling, or preparing for the sale of any type or amount of marijuana.
Violating Section 11361 will result in a state prison term rather than a jail term. The penalties are a three, five or seven-year term if the minor’s age is less than 14 years, or a three, four or five-year term if that minor is older than 14 but younger than 18 years.
The term concentrated cannabis refers to the purified or crude separated resin that you obtain from a marijuana plant. Also known as hash or hashish, California law considers it as marijuana. Therefore, if you are entitled to cultivate, transport, or possess medical marijuana, similar entitlement applies to concentrated cannabis. Also, Proposition 64 permits you to possess a maximum of eight grams for your recreational use.
Marijuana and Driving Laws
- Driving with unpackaged marijuana: Section 23222(b) of the California Vehicle Code prohibits you from driving with marijuana that is not packaged in a container. If your cannabis is in a container, the container should not be open or have a broken seal. Violating this code is an infraction that attracts a $100 fine.
Additionally, Section 11362 of the Health and Safety Code prohibits you from riding in or driving an aircraft, boat, or motor vehicle with an open package or container of marijuana. Contravening this code is an infraction with a fine not exceeding $250. If you are a minor under 18, you receive drug education and community service.
- Possession of unlawful amounts of marijuana while driving: Possession of marijuana that exceeds 28.5 grams, or concentrated cannabis exceeding eight grams is an offense. You may pay fines under VC 23222 and possibly additional misdemeanor charges under HS 11357.
- Underage possession of marijuana while driving: California’s marijuana laws do not permit you to possess any marijuana if you are less than 18 years, except when you adhere to medical marijuana laws. Violating this law is an infraction whose penalty is a $100 fine.
- DUI of Marijuana: Possessing marijuana legally is different from consuming it while driving. California law prohibits everybody from driving after consuming marijuana, even for medical purposes. If you do, you will face any of the following penalties for DUI with marijuana:
- Your first DUI:
- Six months in jail,
- A fine ranging from $390 - $1,000,
- Three or nine months of DUI school,
- License suspension for six to ten months, convertible to a restricted license.
- Your second DUI:
- 96 hours to one year in jail,
- Fines of between $390 - $1,000,
- An 18 or 30-month period in DUI school,
- License suspension for two years, but convertible to restricted status after 12 months.
- The third DUI:
- 120 days to one year in jail,
- Between $390 - $1,000 in fines,
- DUI school for 30 months,
- License revocation for three years, but you must wait for 18 months before it is convertible to a restricted license.
- Misdemeanor DUI with injury:
- Between five days and one year in jail,
- Between $390 - $5,000 in fines and compensation of injured parties,
- A three, 18 or 30-month period in DUI school,
- License revocation for between one to three years.
- Felony DUI:
- A state prison term of 16 months, two or three years,
- Fines ranging from $390 - $1,000,
- DUI school for an 18 or 30-month period, and
- Revoked license for four years.
- Felony DUI with injury:
- 16 months to 16 years in state prison,
- Between $1,015 and $5,000 in fines and compensation of injured parties,
- An 18 or 30-month term in DUI school, and
- A five-year revoked license
The 1996 Compassionate Use Act (CUA), also known as Proposition 215, made medical use of marijuana legal within California. The code detailing this Act is Section 11362.5 of the Health and Safety Act and successive sections. Proposition 64, which legalizes recreational use of marijuana, was enacted twenty years after Proposition 215. However, the laws of medical marijuana still apply in two main ways:
- The limits set by proposition 64 on possession do not apply. With a recommendation from your doctor, you can possess as much medical marijuana as your condition may reasonably demand.
- If you are under 21, you may cultivate or use medical marijuana with your doctor’s recommendation. If you are under 18, your parents must also consent.
Uses of Medical Marijuana
When a doctor recommends or approves, CUA permits the use of medical marijuana if you are suffering from Anorexia, AIDS, Cancer, Arthritis, Migraines, Seizures, Multiple sclerosis, or any debilitating condition, such as severe nausea or chronic pain.
Legal Limits of Medical Marijuana Use
If you are a patient or a primary caregiver, you can legally possess, cultivate, transport, or administer medical marijuana provided that:
- The patient needs marijuana for personal use,
- The amount reasonably correlates to the current medical requirements of the patient.
You cannot cultivate, sell, or possess an amount that exceeds the reasonable medical requirements for you or your patient’s medical use.
You meet the legal definition of a primary caregiver if:
- A patient designates you for that purpose, and
- The patient’s health, safety, and housing is your responsibility.
Medical Marijuana Dispensaries
State law permits cooperatives, collectives, and charitable medical marijuana dispensaries to distribute medical marijuana. The dispensaries operate under stringent local and state regulations, and they may legally give or sell cannabis to a medical marijuana user or primary caregivers at cost.
Federal vs California State Marijuana Laws
The United States Code Title 21 details The Controlled Substances Act. In the Act, the federal government classifies marijuana among Schedule 1 hallucinogenic drugs. The government insists that marijuana is potentially easy to abuse and that it currently has no accepted medical purpose. The federal Controlled Substances Act precedes California laws. Therefore, if you give away, transport, or sell marijuana, you commit a federal offense even if you abide by California’s recreational or medical marijuana rules.
Penalties for Federal Marijuana Offenses
Federal law prescribes severe penalties for marijuana-based crimes.
The first offense of simple marijuana possession attracts a penalty of:
- Not more than $1000 in fines, and
- A federal prison term not exceeding one year.
Possession with the intent to sell or selling marijuana weighing under 50 pounds and cultivation of fewer than 50 plants attracts a penalty of:
- A maximum federal prison term of five years, and
- A maximum fine of $250,000
Prison terms and fines increase with the increase in the quantity of marijuana and the number of your previous convictions. Additionally, after a conviction for a marijuana offense, the court may order you to reimburse reasonable costs that the government incurs in the investigation and prosecution of your violation.
Although federal prosecutors can legally charge you under federal law, the prosecution is unlikely if you cultivate or possess marijuana for private use as per proposition 64 guidelines. The federal government focuses on indicting large-scale marijuana traffickers and offenders with ties to organized crime.
Use of Marijuana on Federal Property
In California, federal law is supreme on all federal premises, which include:
- Federal Buildings,
- Federal Courthouses,
- Public Airports,
- Post Offices, and
- National Parks.
If you violate marijuana laws on federal premises, you will face penalties under federal law. Penalties for drug crimes on federal property are generally stiffer than violations that happen elsewhere.
The federal government assists The U.S. Department of Housing and Urban Development. The department permits local housing agencies to develop their marijuana policies, and they can legally deny housing to recreational and medical marijuana users. Although it rarely happens, using marijuana within a Housing and Urban Development project can cost you other federal benefits such as food stamps.
Marijuana Laws and Immigration
Under the Immigration and Nationalities Act, you will face charges of an aggravated felony if you sell or possess marijuana with an intent to sell. The charges are the same under both federal and California laws. A criminal conviction for an aggravated felony has serious consequences that include, but are not limited to deportation.
Commercial Marijuana Activities
California’s Bureau of Cannabis Control is the lead agency in the development of regulations for adult and medical use of marijuana in the state. The bureau also licenses microbusinesses, distributors, retailers, and testing labs. It has an online licensing system where you can apply for licensing, search for licenses or file complaints.
The Medicinal and Adult-Use Cannabis Regulation and Safety Act (Business and Professions Code § 26000) outlines the framework for regulating commercial marijuana activities in California. Under the act, you must have a license to engage in any commercial activities of cannabis. Also, the local governments control the activities that they permit within their jurisdiction. This Act generally does not change marijuana laws. The only adjustment is exempting use and sales tax from specific medical marijuana sales.
If your commercial cannabis activity is not licensed, you will face civil penalties. Each violation attracts three times the license fee amount. Each day you operate without a license constitutes a separate offense.
Consult a Marijuana Criminal Attorney Near Me
While California legally permits personal and medical use of marijuana, failure to observe these laws can result in an arrest and subsequent prosecution. The fact that federal law still considers any use of marijuana as a crime increases the need for an experienced attorney to handle your marijuana case. Our attorneys at the San Diego Criminal Attorney have been representing clients in marijuana cases for many years. Whether your charges are under state or federal laws, call us at 619-880-5474, and we will fight to get you the best possible outcome.