On 1st January 2018, California legalized the use of recreational marijuana. Despite this, there are circumstances where you can be arrested and charged for possession or sale of marijuana. The majority of people who face arrest are those that don’t understand and comply with marijuana laws. At Orange County Criminal Defense Attorney Law Firm, we have highlighted California Marijuana Laws to help you understand the nuances of the statute.
Simple Possession – HS 11357
HS 11357 is the California statute that sets the guidelines for personal possession of marijuana. Under the law, it is legal for a person 21 years and above to possess 28.5g of cannabis for their use. You can also possess hashish or concentrated marijuana, but only a maximum of eight grams.
The reality that you can purchase or possess recreational marijuana doesn’t mean you can consume it where you want. There are restrictions on where smoking or consumption of marijuana should take place. You should ingest or smoke pot in a private setting such as your apartment but with the consent of the property owner. So, if you have rented, your landlord can prohibit you from smoking or consuming marijuana on his or her property. Your employer can also forbid employees from devouring pot at the workplace.
Note that you cannot smoke marijuana in tobacco smoking zones. It is a crime, and you might find yourself facing criminal charges.
Incidences Where Possession of Marijuana is Unlawful
An individual below 21 found in possession of marijuana will be subject to infraction charges. Possession of more than four grams of hashish or more than 28.5 grams of marijuana will result in an infraction or misdemeanor charge. The same charges will apply if you are having or controlling hashish or pot on the surroundings of a K-12 school while learning is in progress. Below are the penalties of unlawfully having cannabis:
- If you are below 21 and are facing accusations for possession of marijuana or concentrated cannabis, the prosecution will file infraction charges against you. A conviction will result in a drug treatment program and community labor if you are under the age of 18. If you are above the age of 18, a sentence will attract court fines not exceeding one hundred dollars.
- Where you are 18 years or more and are facing charges of having more than an ounce of marijuana and more than eight grams of hashish, you will face misdemeanor charges. Its conviction could result in a maximum of six months in Orange County jail or no more than five hundred dollars in court fines.
- In case you are 18 years and below, and you are found in possession of more than an ounce of marijuana or more than four grams of hashish when you are below 18 years, you will face an infraction charge. Upon sentencing, you will be subject to a drug treatment program and community service.
- If a defendant is 18 years or above and owns marijuana or concentrated cannabis on a K-12 school ground, the preferred charge by the prosecution will be a misdemeanor. If you are a first offender, the punishment will be as much as $250 fine upon sentencing.
- Where a defendant below the age of 18 has marijuana or hashish on a K-12 school compound while students are in session, you will face an infraction charge. A conviction will incur you drug counseling and community labor.
After an arrest for this offense, you can still prevent sentencing, but for that to happen, you need a reputable criminal defense law firm on your side. Some of the legal defenses that can help you reduce the charges or avoid conviction entirely are:
- You did not have marijuana
- The pot didn’t belong to you
- You were not aware of the weed being in your possession
- The cannabis was discovered in an unlawful search and seizure
Marijuana Cultivation – HS 11358
The statute forbids Californians from the illegal cultivation of marijuana. After the passing of Prop 64, it is legal for an individual 21 years and above to grow marijuana for recreational use. The person should, however, not cultivate more than six plants. Aside from the age restriction and the number of plants to grow, the other limits include:
- You cannot plant more than six plants in one private residence
- You must adhere to the relevant local ordinances
Again, even if you are a couple and live together, the law doesn’t allow you to grow more than six plants on the same private property. A lot of people violate this statute because they assume each person should grow six plants hence end up planting more than six plants of marijuana on a single private residence.
As per HS 11358, marijuana plants should grow indoors, in a locked place where they are not visible to the public. The statute also defines cultivation as planting, cultivating, harvesting, drying, or processing of marijuana.
If your age is between 18 to 20 years, growing weed is an infraction whose punishment is a court fine of no more than $100. On the other hand, you will face misdemeanor charges if you are 21 or above and cultivate more than six plants of weed. If you are found guilty of a misdemeanor charge, you will incur not beyond six months in jail or court fines not exceeding five hundred dollars.
In particular situations, you might find yourself facing a felony offense when you grow more than six plants of weed and:
- You have a violent felony on your criminal record
- You are registered as a sex offender
- You have two or more prior convictions under HS 11358
- During cultivation, you violate specific environmental laws
If you are found guilty of a felony, the punishment is jail incarceration for no more than 36 months or court fines of up to ten thousand dollars.
Apart from the court fines and jail time, after a conviction for the illegal growing of marijuana, the court can postpone the sentence and instead order you to enroll and complete a drug treatment program. Not everybody is eligible for deferred entry of judgment. You only qualify for DEJ (Deferred Entry of Judgment) if:
- You are facing allegations of growing excessive marijuana
- You are a non-violent first or second-time offender
Before the passing of Proposition 64, Californians found cultivating cannabis were subject to severe penalties. But after the passing of the proposition, people who were convicted before its passing can apply for resentencing or dismissal of the charges. Unless you are a risk to the public, the court will suppose you meet the standards for resentencing.
You can fight HS 11358 charges by arguing that you were cultivating plants, but they were not marijuana. Similarly, you can assert that the marijuana plants belonged to someone else, or the arrest was due to an illegal search and seizure.
Possession with Intent to Sell – HS 11359
After the passing of Prop 64, the sale of marijuana became legal. However, not everyone can sell weed. Only a few entities which have met the state and local government criteria are allowed to sell cannabis. So, despite the sale of marijuana being legal, selling the pot without a license can lead to criminal charges as per HS 11359.
For an adult facing accusations of possession of marijuana with intent to sell, he or she will face misdemeanor charges. A conviction for the offense is punishable by as much as six months in jail or a maximum of $500 court fines.
The offense of possession of marijuana without a license will be charged as a felony where:
- You have a prior conviction for a violent felony offense such as murder, sex crimes against a minor less than 14 years, gross vehicular manslaughter while under the influence, or any other crime that requires sex offender registration
- You have at least two prior convictions under HS 11359
- You had marijuana for sale in connection to attempted sale to a person under 18
Defendants who face felony charges upon conviction risk facing sixteen, twenty-four or thirty-six months in Orange County Jail.
Note that it isn’t easy for the prosecution to prove you intended to sell the weed, although it was in your possession. The prosecutor will rely on the following proof to show you had the intent to sell:
- Large quantities of weed
- Presence of baggies and scales
- Marijuana divided into several baggies
- Presence of cash or weapons
- The opinion by the arresting officer that the pot was intended for sale
- A history of selling drugs
An excellent criminal defense attorney can help you contest these charges by arguing that:
- You were not aware the marijuana was in your possession
- The weed was for personal use
- The pot was medical marijuana for personal use by a patient whom you are the primary caregiver
- You intended to share some of the cannabis with friends
- You were planning on disposing of the weed
- The detention was due to an illegal search
Sale of Marijuana Without a License – HS 11360
According to this Health & Safety Code, it is a crime to sell marijuana without a license from the Bureau of Marijuana Control. The main aim of the statute is to prevent a black market for weed. The only people who are allowed to sell marijuana are those who have a license.
The majority of persons accused of selling weed without a license face misdemeanor charges. If the court finds you guilty of the offense, you will incur up to 180 days in jail or court fines of no more than one thousand dollars.
You will be charged with an infraction if you are below 18 years, and if the accusation against you is selling weed without a license. Giving away or transporting marijuana not exceeding 28.5 grams for sale without a permit will also attract infraction charges.
Sale of marijuana without a license is filed as a felony if:
- You have a previous sentence for a serious violent felony
- You have not less than two prior convictions for breach of HS 11360
- You deliberately sold, tried selling, offered to sell, or furnish weed to a minor below 18 years
- You, as the defendant, offered to import into California, moved, offered to carry, or attempted to move out of California for sale, more than an ounce of marijuana or more than four grams of hashish
Felony HS 11360 is punishable by 24, 36, or 48 months in jail.
Remember that moving or transporting marijuana without any plans of selling or giving away is not a crime if:
- You carry or offer for free less than an ounce of marijuana or less than eight grams of hashish
- You give marijuana to people aged 21 years or above
When defending against HS 11360 charges, you should contest that:
- The police entrapped you
- You were only carrying the weed but not for sale
- You are a primary caregiver transporting or giving medical marijuana to a patient
- You were offering the cannabis for free and not selling
Selling Marijuana to a Minor – HS 11361
This marijuana law makes it unlawful for an adult to:
- Sell, give, or offer marijuana to a minor
- Induce a child to use marijuana
- Hire, or use a child to transport, sell or provide for free marijuana
An adult, in this case, is any person over 18 years while a minor is a person below 18 years. This statute makes it a felony to use a person under the age of 18 to illegally:
- Give away
- Prepare for sale, or
- Peddle any quantity or form of marijuana.
Keep in mind that a conviction for violating HS 11361 is punishable by a state prison sentence instead of a jail sentence. In cases where the minor involved is below the age of 14, upon conviction, you will serve a prison sentence of 36, 60, or 84 months. Where the child is over 14 years, but below 18, you as the defendant will serve a California prison sentence of 3, 4, or 5 years.
When defending against HS 11361 charges, you can assert that:
- You never sold, gave away or offered a minor marijuana
- You never induced a person under 18 to use marijuana
- You had a reasonable belief that the person was 18 years or above
- You were entrapped by law enforcement
Remember that you might still be convicted even if you argue that you reasonably believed the juvenile was 18 years and above.
It is also known as hashish or hash. It is a resin either crude or purified that is acquired from a marijuana plant. Under the California statute, concentrated cannabis is still marijuana. It means that Californians can even grow, cultivate, possess, or transport hashish the same way they do with medical marijuana as long as they are authorized to do so.
According to Prop 64, simple possession of hashish is not a crime if the amount you own is not more than 8 grams, and it’s for personal use.
Driving with Marijuana – VC 23222
Despite the possession of an ounce of marijuana or not more than 8 grams of hash becoming legal in January 2018, California laws are still strict on driving with possession of marijuana. VC 23222(b) makes it illegal to operate a vehicle with any cannabis that is not in bags or containers. The same law prohibits people from driving while in possession of marijuana that is in an open box.
In the event you breach the open container law, you will be charged with an infraction, which when you end up with a conviction, will see you part with one hundred dollars as court fine.
You will be charged with a violation of VC 23222 if you possess marijuana that is more than 28.5g or concentrated cannabis that is more than four grams.
For persons under 21 years, the law prohibits them from possessing any amount of marijuana. It means for under 21 individuals, whatever amount is found on your possession while driving, you will be subject to VC 23222 charges.
Note that driving under the influence of marijuana is different from the possession of marijuana while driving. The law forbids anybody from getting behind the wheel when intoxicated by marijuana.
Also, remember that the law criminalizes operating a vehicle or boat when you have an open container or another package of marijuana. The open-container statutes apply when driving a car with a free alcohol container and when driving with marijuana in the vehicle.
Proposition 215 was passed in 1996, and it made use of medical marijuana legal. California HS 11362.5 is the marijuana statute that defines medical marijuana. Even after the legalization of recreational marijuana, medical marijuana laws are still in place.
Medical marijuana laws are different from those of recreational marijuana because there is no limit in the amount you possess as long as your doctor has made the recommendation.
Individuals aged 21 years and above can use or plant medical marijuana after a recommendation from the doctor. But if you are under 18, even after the proposal by the doctor, you will need consent from the parents before you proceed with growing or using medical marijuana.
Doctors recommend medical marijuana for serious health issues like:
- Serious nausea
- Chronic pain
If you are responsible for a patient’s health, safety, and shelter, you are a primary caregiver. Under medical marijuana law, patients and caregivers are allowed to possess, grow, transport, or administer medical marijuana in an amount reasonably related to the patient’s condition and for the patient’s personal use.
The caregiver or the patient is not allowed to sell, possess, or cultivate marijuana that is more than what the patient reasonably requires for the medical condition.
After the enactment of Proposition 64 on 1st January 2018, patients using medical marijuana were advised to seek new suggestions from their doctors on usage.
On the issue of sale or distribution of medical marijuana, only collectives, cooperatives, or non-profit medical marijuana dispensaries are allowed to distribute the product. A dispensary will need approval from relevant state or local authorities before commencing operations. Dispensaries operating within the law are required only to sell the weed to patients or primary caregivers.
Despite California legalizing the use of recreational and medical marijuana, the federal law believes weed has a high risk of being abused., hence it's illegal for medicinal purposes. Under the Controlled Substance Act (CSA), marijuana is still a Schedule 1 drug. But recently, a policy was enacted to ensure federal prosecutors respect people who cultivate, possess, or transport marijuana as long as they comply with the state marijuana laws. It is because of this that people continue using cannabis for recreational or medical purposes in California despite it being illegal under federal law.
Note that even if you have complied with the marijuana laws, federal prosecutors can choose to arrest you. It is because of this reason that you will need an excellent criminal defense attorney because you might end up with a conviction even if you have complied with the law.
Keep in mind that you will face federal prosecution for marijuana if you don’t cultivate or possess for personal use. If you are linked with large scale traffickers or organized crime, even if you have complied with the law, you will still be prosecuted.
The federal law punishes marijuana offenders seriously. Simple possession of marijuana conviction will subject you to:
- Up to one thousand dollars’ fine
- No more than twelve months in federal prison
Where you have been charged with possession of with intent to sell more than 50 pounds of marijuana or 50 marijuana plants, the punishment is:
- Federal prison incarceration for no more than five years
- Court fines not beyond $250,000
Remember, after a conviction, you will still need to pay restitution to the government for the cost of investigating and prosecuting the crime.
Find a Criminal Defense Law Firm Near Me
If you have any questions regarding California Marijuana Laws or want to discuss your case, contact the Orange County Criminal Defense Attorney Law Firm at 714-740-7848 for a free consultation. Our attorneys understand marijuana laws and will assess your case to provide quality legal guidance for a favorable outcome.