The law governing marijuana in California has changed with the adoption of Prop. 64. However, the freedom that comes with legalization collides with the harsh reality of criminal prosecution. Law enforcement officers vigorously enforce the law to uncover violations of the Health and Safety Code.
You may think you are completely within the law to have a small quantity for personal use, but you could be charged with a misdemeanor under Section 11357 for exceeding weight limits. Worse still, you might be charged with the sale of marijuana under 11359 since an officer found cash or packaging materials and your own supply.
These accusations could attract possible jail time, hefty fines, and a criminal record. In situations where your future is in question, hire a defense lawyer who can maneuver the California justice system. At CCLG: Los Angeles Criminal Attorney, we can offer a vigorous defense to challenge the prosecution’s evidence and defend your rights.
An Overview of Marijuana Possession in California
You may think that marijuana is an entirely legalized drug in California. However, the law has strict regulations that determine what constitutes legal possession and what constitutes a criminal offense. The Adult Use of Marijuana Act, which was initiated by Proposition 64, formed a haven where adults who are 21 years of age and above could keep certain amounts of the drug for recreational use.
However, these legal protections are limited and can be easily violated by individuals who do not strictly follow the weight limit or the particular regulations on the nature of the cannabis they carry. There is a thin line between non-medical personal use and activities that California considers part of the illicit market. Once you cross these lines, you are no longer under the protection of the law that made the plant legal, but rather entangled in the criminal justice system in the Health and Safety Code.
The shift from a prohibitionist to a regulated state has caused significant confusion among the public and law enforcement officers. Local police departments may continue to focus on marijuana enforcement, especially when they have an excuse to elevate a mere possession offense to one of intent to sell.
Understanding California marijuana laws is an important first step in protecting your rights, but it can hardly do the job of going through the court system on your own. Legal definitions of possession, knowledge, and intent are the fields where your case will be battled, and the facts of your arrest and your legal representation usually determine the results.
Health and Safety Code 11357 (Simple Possession)
Health and Safety Code 11357 is the main law that regulates the mere possession of marijuana if you do not have the particular intent to sell the substance. You are subject to this law if you are caught in possession of marijuana exceeding the legal limits set by the law regarding personal use, or because you are of a certain age, when possession of marijuana is against the law.
The prosecution must prove beyond a reasonable doubt that you had control over the substance, that you were aware of its presence, and that you knew it to be a controlled drug. Marijuana doesn’t need to be in your hand or in your pocket during the arrest. You are in constructive possession when the marijuana is in a place where you have dominion and control, like your bedroom, the glove box of your vehicle, or a common kitchen cabinet.
The notion of joint possession also complicates these cases. The notion can make you be charged together with another individual if you have access to and control over the same stash of marijuana. You can end up being charged because you were in a car where marijuana was found, even though it belonged to a friend. The prosecutors normally use the usable amount doctrine, which holds that it is impossible to be convicted of possessing mere rabble or microscopic traces of the drug.
Rather, the drug should be in a quantity that is enough to be ingested as a drug. Although this offers some coverage for accidental contamination, it exposes you to several limits that could result in a misdemeanor charge if you exceed them for adults aged 21 or older.
Legal Limits for Flower and Concentrated Cannabis
You have a right to possess up to 28.5 grams of dried marijuana flower if you are aged 21 or older. However, even the slightest exceedance of this amount may result in criminal charges. This limit is about one ounce, which is a typical unit in the recreational market, which the state has enshrined in law as the maximum limit of legality of simple possession.
If you are caught with more than this, you are charged with a misdemeanor that may result in a prison term of up to 6 months in the county jail and a fine of $500. The legislation is even more strict towards concentrated cannabis, which comprises such products as hashish, honey oil, wax, and resin extracts. You can only have up to eight grams of these concentrated products because the state is worried about their higher concentration and the chemical reactions that are, in most cases, employed to prepare them.
You might wonder why the limits are so vastly different between flower and concentrate, but the law considers eight grams of resin to be equal to an ounce of flower in its potential effect. As a medical marijuana user, you may enjoy alternative rights under the Compassionate Use Act, yet recreational users have no option but to follow these ways.
The legal limit of recreational possession is zero if you are under the age of 21. Between the ages of 18 and 20, anything possessed is considered an infraction and is punishable by a fine of $100. When you are younger than 18 years of age, you face an infraction that will not involve a fine or jail sentence, but drug education and community service.
Punishments Against Possession Around School Grounds
The fact that you were on or anywhere close to the premises of a K-12 school can make the legal implications of your possession more severe. Health and Safety Code 11357(c) specifically addresses possession on school property during school days or during school-sponsored after-school programs. California has zero tolerance for marijuana in such settings to ensure that the minors are not exposed to drugs. When you are 18 years or older and caught with any quantity of marijuana on school grounds, you are charged with a misdemeanor that is more serious than a typical possession offense. The initial offense attracts a fine of $250, but the second and subsequent offenses attract a fine of $500 and up to 10 days in the county jail.
One does not have to be a student enrolled in the school to have to deal with these charges, as the law applies to any adult who comes onto the campus with marijuana or even in a vehicle. The definition of “school grounds” is broad and can include parking lots, athletic fields, and walkways adjacent to the school grounds, which are considered part of the school grounds.
If you are a minor who is below the age of 18 and caught in possession on the school premises, the case will still be an infraction, but the court will order more rigorous drug counseling and community service. These school-zone enhancements are meant to be retaliatory, and prosecutors are not known to be lenient when it comes to prosecuting cases involving drug presence in schools and the environs.
Health and Safety Code 11359 (Possession of Marijuana to Sell)
Although simple possession may be considered a minor offense, you are in a far more dangerous legal position when you are accused of possessing marijuana to sell it. Health and Safety Code 11359 criminalizes the possession of any quantity of marijuana that can be used to exchange it for money, services, or any other item of value.
You need not be a large-scale distributor to be subject to these charges, because even a few ounces can constitute sales inventory when the circumstances surrounding them indicate a commercial purpose. The prosecution does not have to demonstrate that an actual sale occurred, but only that you had the marijuana in your possession and that you had the subjective intention to sell the marijuana. This motive is the hardest for the prosecution to establish and the most important aspect your defense must dispute.
During a period of recreational use of marijuana, you would think that anyone can sell it. However, California requires a commercial license from the Bureau of Cannabis Control to engage in any sales activity. When you are not working within this licensed system, this is considered a black-market business, and you do not enjoy the benefits of the system that comes with the use of Prop 64.
The prosecutor will strive to construct a case using direct and circumstantial evidence to demonstrate that you did not possess it for personal use. They will examine your past, whereabouts, and what they discover in your possession to persuade a jury that you are an unlicensed dealer. Most defendants are charged with a misdemeanor. However, it may easily turn into a felony when you possess certain previous convictions or when your supposed sales actions involve minors.
Establishing Intent
The prosecution seldom has actual evidence of intent to sell, like a recorded statement in which you say you are a dealer, so they are left to rely on what are called indicia of sale. Ordinary household objects are used against you in court to prove this criminal intent through the following:
- Digital Scales — Used to argue that you were weighing portions for distribution rather than checking personal consumption.
- Small Baggies — Marijuana split into small, equal-sized plastic bags (often called dime or nickel bags) suggests they were prepared for individual sale.
- Lack of Paraphernalia — The absence of pipes, rolling papers, or vaporizers may be used to argue that you are a seller who does not actually consume the product.
- High Quantities of Cash — Large amounts of money, especially in low denominations such as $5, $10, and $20 bills, are often characterised as “drug money” from past dealings.
- Digital Communication — Text or social media messages referring to prices, meeting points, or product types.
- Expert Testimony — Prosecutors may call upon a veteran narcotics officer to testify that the amount of marijuana you possessed is inconsistent with personal use and consistent with an intent to distribute.
Your defense should be ready to refute these interpretations by giving other legal explanations for each of these factors.
Misdemeanor vs. Felony Enhancements
A violation of Health and Safety Code 11359 usually results in misdemeanor punishments, such as as much as six months in the county jail and a fine of $500. But aggravating factors may elevate this crime to a felony, resulting in a far harsher sentence of imprisonment.
Factors that can elevate a misdemeanor to a felony include:
- Prior “Super Strike” Convictions — Having a record for crimes such as murder, rape, or gross vehicular manslaughter while intoxicated.
- Repeat Offenses — Having two or more previous misdemeanor convictions of possession of marijuana for sale.
- Sales to Minors — Possession with the intent to sell, knowing that you are going to sell, or attempting to sell to a minor who is younger than 18.
Under the realignment sentencing provisions of California law, the court may impose a sentence of 16 months, two years, or three years in the county jail.
The most serious felony enhancements are provided if you possess marijuana to be sold, to know that you are going to sell, or even attempt to sell the substance to a minor who is younger than 18. The law especially protects children, and any implication of any minors in your so-called drug activities will lead to a vicious prosecution and a high chance of serving time in prison.
In addition to the criminal punishment you face, a felony drug conviction may take away your right to own a gun, reduce your right to receive government benefits, and lead to professional debarment. If you are not a U.S. citizen, a conviction for possession with intent to sell is usually considered a crime and may carry severe immigration consequences, including possible deportation or inadmissibility, which may result in deportation and a lifetime prohibition on re-entry.
Legal Defenses to Marijuana Charges
You are not helpless in responding to charges of marijuana possession or possession with intent, and a skilled team of lawyers can use numerous approaches to counter the story of the prosecution.
Challenging the Element of Possession
The simplest defense is to defend the element of possession itself by proving that you had no control over the substance. You may have been a passenger in a car in which marijuana was discovered, or you may have been living in a shared house where a roommate stored a stash in a common place, against your knowledge.
Unless the prosecution can establish beyond a reasonable doubt that you were aware that the marijuana was present and that you had the authority to control the marijuana, then you cannot be found guilty. You can also claim that you did not know what the substance was, possibly because you thought that a bag of dried herbs was a legitimate cooking spice and not a prohibited drug.
Contesting the Intent to Sell
The other good tactic is to contest the intent to sell by proving that you were using the marijuana for personal purposes. You may demonstrate high tolerance, you may demonstrate that you bought in large quantities to save money, and you may indicate that you have your own smoking pipes and lighters as evidence of use. When the case of the prosecution solely relies on circumstantial evidence, such as scales or cash, your defense can offer other reasons, such as that you are in a cash-driven business or that you use the scale to cook.
Addressing Procedural Errors
If such alternative explanations cause reasonable doubt in the minds of the jurors, the prosecution has not performed its burden of proving its case. The procedural mistakes that your lawyer can seek include the failure to read you the Miranda rights or a defective chain of custody of the evidence obtained.
The Compassionate Use Act (Prop 215) and Primary Caregiver Defense
You can have a strong defense under the Compassionate Use Act of 1996, should you be a medical marijuana patient or a designated primary caregiver. This law offers a positive defense against possession and cultivation charges if the marijuana was cultivated by the patient for personal medical use.
To avail yourself of this defense, you need to demonstrate that a licensed physician prescribed or authorized the use of marijuana to treat a particular medical condition, including cancer, AIDS, chronic pain, or glaucoma. Medical patients are not limited by the one-ounce limit as much as recreational users are, provided they can demonstrate that the quantity they had was reasonably related to their present medical requirements. This is essential protection if you are caught possessing larger amounts of the drug that an officer may otherwise consider a sales incentive.
The primary caregiver defense is also available to you if you regularly housed, cared for, or kept a qualified patient. As a caregiver, you are entitled to the legal right to possess and carry marijuana to be used by the patient, and you can be shielded against prosecution even if you do not use the drug.
However, you should be ready to demonstrate that your relationship with a caregiver is legitimate and that you are not just taking advantage of the status to distribute illegally. The patient must have assigned you the duty of being a caregiver, and your assistance should be in the form of giving actual care, other than just providing marijuana.
When selling the drug to different individuals under the pretense of being their so-called caregiver is your main business, the court is not going to accept this defense, and the criminal charges will be continued.
Unlawful Searches and Seizures
The Fourth Amendment to the United States Constitution is often the strongest weapon in your defense arsenal, as it gives you protection against unreasonable searches and seizures. In your case, you might realize that the police found the marijuana by exceeding their legal powers, for example, by over-searching your house without a warrant or stopping your vehicle without probable cause.
If your lawyer can demonstrate that the search was unlawful, he/she may invoke a motion to suppress the evidence under Penal Code 1538.5. If the judge grants this motion, the police confessions will not be admissible in court. The effective suppression of evidence typically results in an outright dismissal of your case since the prosecution is unable to present a charge of possession unless the actual drugs are produced.
You need to know that the vehicle search rules have changed drastically since legalization. Previously, the odor of marijuana alone would be sufficient to allow a warrantless search of a vehicle, but more recent court rulings have limited this power. Unless you are under 21 and the police can prove that your driving is impaired or you have an open container, the odor of unburnt or burnt cannabis may not give the police authority to search your car.
Likewise, when the police broke into your house on the grounds of an emergency that was obviously fabricated to prevent obtaining a warrant, your constitutional rights were infringed. The defense attorney will thoroughly examine the police reports, the body camera footage, and the witness statements to discover any evidence of police misconduct that can be used to suppress the evidence against you.
Prop 64 Resentencing and Record Expungement
You may be eligible to clean up your record under the provisions of the resentencing and redesignation of the current laws as provided in Proposition 64, which was enacted in 2016.
Pathways to clearing your criminal record include:
- Proposition 64 Resentencing/Redesignation — You may request the court to reduce a prior felony to a misdemeanor or dismiss a prior misdemeanor if the conduct is now lawful or attracts a milder punishment under current standards.
- Penal Code 1203.4 Expungement — If you are off probation and are not under new criminal charges, you may seek a standard expungement. While this does not remove the record from law enforcement databases, it enables you to honestly declare to most private employers that you have not been convicted of a crime.
Locate a Criminal Defense Attorney Near Me
Navigating the border between state legality and criminal enforcement requires you to have an advocate who understands the California Health and Safety Code. It may be a simple misdemeanour, such as simple possession exceeding the legal limit, or a felony enhancement for possession with intent to sell. Drug offenses attract lifelong consequences of a criminal record, including professional licensing and child custody. Our practice at CCLG: Los Angeles Criminal Attorney is to challenge the prosecution, fight against unlawful searches, and use the Compassionate Use Act to our advantage to dismiss or lower the charges against our clients. We have a skilled legal team ready to provide you with aggressive, localized representation. Call our attorneys at 323-922-3418 to have your case fully assessed.
