Marijuana

The legal status surrounding marijuana has become increasingly unclear in recent years but the possession and cultivation of marijuana is still illegal according to federal law. However, California state law grants immunity from prosecution for medical marijuana. If you have marijuana for non-medical reasons, you can still face criminal penalties, although in California on November 8, 2017 the state voted to make recreational marijuana legal.

Simple possession of not more than 28.5 grams of marijuana (other than concentrated cannabis) is only an infraction, not a crime. It is punishable by taking classes, doing community service or a $100 fine. But you will not do jail time.

However, you would be committing a crime if you are found to be in possession of more than 28.5 grams of marijuana, in possession of marijuana on a K-12 school grounds, or in possession of any amount of concentrated cannabis.

Things get more serious when you are charged with possession of marijuana for sale, which is a felony. This is punishable by 16 months, or two or three years in county jail.

To convict you of intent to sell, the prosecution need only present circumstantial evidence, also known as ‘indicia of sale’. This can be a large quantity of marijuana, the presence of drug-related items such as baggies and scales, marijuana divided into multiple baggies or containers or the presence of cash or weapons. In fact, the prosecution need only present the opinion of the arresting officer that the marijuana was for sale as officers’ testimony is presented as expert.

California Health and Safety Code 11360 is a broad law that prevents the movement or transfer of marijuana. According to this law, it is unlawful to transport, import, sell, furnish, administer, give away or offer marijuana. There are exceptions for medical marijuana users and their primary caregivers.

For everyone else, giving away or transporting less than 28.5 grams of marijuana (other than concentrated cannabis) is a misdemeanor. Giving away or transporting for sale less than an ounce of marijuana is punishable by a $100 fine.

Transfers of more than 28.5 grams of marijuana or a sale of any amount is a felony. Felony violations of Health and Safety Code 11360 carry a penalty of 16 months, or 2 or 3 years in county jail.

It is a felony to sell marijuana to a minor and the defendant will be treated more or less severely depending on whether or not the minor is older than 14.

Similar to driving with an open container of alcohol, it is prohibited to drive in possession of up to 28.5 grams of marijuana according to California Vehicle Code 23222(b). This is treated as an infraction and can be punished by up to a $100 fine. This is fine is separate from and in addition to the penalty for possessing marijuana under California Health and Safety Code 11357 HS.

Although marijuana has been decriminalized by California state law, it is still illegal according to federal law and you may be vulnerable to federal prosecution if you are accused of being a large-scale trafficker or having links to organized crime.

Moreover, federal law applies on federal property within the state of California. Examples of federal property include: public airports, federal buildings such as post offices, federal courthouses and national parks. If a violation of marijuana law occurs on federal property, it can be punished under federal law. Federal penalties are generally greater for drug crimes that occur on federal property than those that occur elsewhere but are, nevertheless, prosecuted under federal law. ​

Examples of Defenses Against Marijuana Charges

Although marijuana may no longer seem like a big deal, you should always consult a lawyer when being charged with a crime. Non-violent first- and second-time offenders who are arrested for simple possession or cultivation of marijuana for personal use are often eligible for diversion to a drug treatment program instead of jail. California has two different drug diversion programs: Deferred Entry of Judgment (DEJ), and Proposition 36. DEJ may be available if you are charged with either simple possession, or cultivation for personal use.

To receive DEJ, you must plead guilty to the charges and file a presentencing petition with the court. If the judge grants your petition, your sentencing will be held off while you receive drug treatment. Treatment must last at least 18 months but not more than three years. Upon successful completion of the program, the judge will dismiss your case. For most purposes, the arrest will simply cease to exist. However, you are ineligible for DEJ if you have a prior drug conviction, you have had probation or parole revoked for non-compliance, or within the last five years, you have received DEJ or been convicted of a felony.

Under proposition 36, the judge is required to sentence eligible offenders to drug treatment instead of jail. You are eligible if you are a non-violent first- or second-time offender, and you are accused of simple possession of drugs. However, you are not eligible for Prop. 36 drug treatment if the charge is for cultivation. But if the charge is for simple possession, you are eligible for Prop. 36 sentencing even if you filed a petition for DEJ and it was denied.