California became the first state to legalize medical marijuana in 1996 and has since legalized cannabis for recreational use. Since the legalization of marijuana, California cannabis laws have also evolved to accommodate the legalization. Understanding these laws is critical to understanding the penalties associated with violating them and what to do if you are arrested. If you are facing charges for violating California marijuana laws, get in touch with us at Los Angeles Criminal Attorney for legal help.
Legalization of Marijuana in California
Possessing and using marijuana for medical and adult recreational use is legal. After the criminalization of marijuana under the US Controlled Substances Act, marijuana was classified as a Schedule I drug. This classification came about since cannabis was said to have no medical use and carried a high risk of abuse and addiction.
However, research studies have demonstrated the medicinal benefits of marijuana, resulting in legalization efforts for medical marijuana in the 1990s. California legalized medical marijuana in 1996, becoming the first US state to do so. In 2016 (effective January 1, 2018), it became legal to use weed for recreational purposes in the state.
California voters passed Proposition 64 in 2016, which allowed recreational marijuana to become legal. Proposition 64, or the Adult Use of Marijuana Act, legalized specified recreational use of marijuana and reduced the criminal penalties associated with marijuana offenses.
Regardless, marijuana is a heavily regulated area, and the state is still fighting related illegal activities, including illegal cultivation, possession, transportation, sale, and manufacture.
Marijuana Cultivation Laws
California HS 11358 allows adults aged 21 or over to cultivate a maximum of six marijuana plants. Growing for recreational use does not require a license, but medical and commercial growers must obtain a license to cultivate cannabis.
You should obtain a cultivation license, depending on the area where you want to grow mature plants and the type of lighting you intend to use. Your license may also vary if you intend to sell immature plants (nursery license) or to process cannabis after harvest.
While cultivating, you must adhere to cultivating marijuana indoors, in a locked place, and where the plants are not visible from a public area.
Failing to adhere to any cannabis cultivation regulations could result in charges for unlawful cultivation.
If you are growing commercially, you must adhere to the cultivation guidelines, including:
- Pest management practices such as safe pesticide use and the pesticides you can or cannot use.
- You must also obtain permits from the California Department of Fish and Wildlife and the California Water Boards. These boards regulate safe agricultural and water usage practices that protect water and preserve aquatic ecosystems in California from damage.
Unlawfully cultivating marijuana is a misdemeanor when you grow more than six plants and are 21 years or older. The penalty for a misdemeanor violation is a maximum of six months in jail.
In some cases, the illegal cultivation of marijuana is a felony punishable by up to three years in jail. Illegal cultivation becomes a felony when:
- You have a serious violent felony on your record
- You have two or more prior convictions for illegal cultivation
- You violated some environmental laws during the illegal marijuana cultivation
- You are a registered sex offender
Note: if you are using medical marijuana, it is advisable to get a medical marijuana card. The card comes with several benefits, including:
- Exemption from paying state sales and taxes related to cultivating marijuana for recreational use
- Grow more than six marijuana plants as long as it is consistent with their reasonable needs
- Access to marijuana (with consent and a doctor’s recommendation) for those younger than 21
If you are a medical cannabis user and are arrested for illegal cultivation, you bear the burden to prove that your growing activity is consistent with the law and your medical needs (medical marijuana users can grow up to six mature plants and 12 immature plants or as many as is reasonably consistent with their medical needs).
Possession of Marijuana Laws
In California, adults aged 21 or older can legally possess up to 28.5 grams of dried marijuana or up to 8 grams of concentrated cannabis for personal recreational use.
Under HS 11357, it is still illegal to possess more than the legally allowed quantities or possess marijuana when you are younger than 21.
Violating this possession law attracts a misdemeanor (or simple) possession charge. The offense carries a jail term of up to six months. Juvenile offenders (under 18) found possessing more than 28.5 grams of marijuana or 8 grams of hashish commit an infraction resulting in court-mandated drug counseling or community service.
It is also illegal to possess any amount of marijuana on or inside a K-12 school grounds, whether it's open during school hours or for after-school programs. Adults who possess marijuana on school grounds are guilty of a misdemeanor that carries a fine of up to $250 for first offenders.
Note: possession of marijuana is still illegal under federal laws. Therefore, while you might not be prosecuted within California, possessing outside state lines could subject you to penalties for possession.
It is also prohibited to smoke cannabis in public areas, including areas where smoking tobacco is prohibited.
Note: Most employers in California require drug tests when making an employment decision. Thanks to the passing of Assembly Bill 2188, employers can no longer discriminate against employees who use weed recreationally off the job or away from the workplace. The law comes into effect on January 1, 2024.
Possession for Sale
While California made it legal to possess marijuana for personal use, possession for sale is an offense under HS 11359. The prosecution must prove that you intended to exchange the marijuana for money, services, or valuables.
In most cases, police rely on circumstantial evidence to determine whether you possess it for sale or personal use. Some clues they rely on include:
- You had more marijuana that exceeds the quantities for personal use
- You had equipment with you that suggested your intent to sell – for example, packaging materials
- You were found with the marijuana in a place where marijuana black market sales are common
- The manner of packaging suggested they were for sale – for instance, multiple packages with the same quantity
- The police find cash alongside the marijuana
- You have a record of selling marijuana in the past
- Expert testimony
The circumstantial evidence used in these cases is not always reliable. For example, a person who buys marijuana in bulk to save money might be thought to be buying it for sale. The best way to protect yourself is to work with an experienced drug crimes attorney to fight these charges.
Possession for sale is a misdemeanor. However, the offense is a felony if you have a prior conviction for a serious violent felony, two prior convictions under HS 11359, or attempted to sell to a minor.
Transportation and Sale of Marijuana
You must have a distribution license to transport cannabis and cannabis products in California. With the license, you can sell marijuana products that you cultivate, manufacture, or sell to other businesses.
Selling or transporting marijuana without a license is a crime defined under HS 11360. This code makes it a crime to sell, give away, import, or transport any amount of marijuana or hashish without state and local licensing allowing the sale.
An exception to this requirement is primary caregivers transporting marijuana for their patient's medical needs.
Violating HS 11360 is usually charged as a misdemeanor with a maximum jail sentence of six months. In some cases, unlawful transportation or sale of marijuana is a felony if:
- You have a prior conviction for a serious violent felony
- You have at least two prior convictions for unlawful sale or transportation of marijuana
- You knowingly sold or attempted to sell to a minor (under 18 years)
- You imported or attempted to import or export more than 28.5 grams of marijuana or over 4 grams of hashish
If convicted of a felony, you face two to four years in county jail. You may also face additional collateral consequences of a felony conviction on your record, such as losing your firearm rights.
Note: when charged for unlawful transportation or sale of marijuana, the prosecution does not have to prove that you had personal possession of the marijuana in question. What the prosecution has to prove, however, is that you had direct or indirect control over the marijuana.
Concentrated Marijuana Laws in California
Concentrated marijuana or hashish is the resin produced from marijuana plants. It has various appearances, most commonly brick-shaped, liquid, or as a semi-solid substance.
Concentrated marijuana is legal for medical and recreational use, as long as you follow the legal limitations. For recreational users, the legal limit is eight grams. Exceeding this limit could result in various cannabis-related offenses, including:
- Simple possession
- Possession to sell
- Unlawful production- usually prosecuted under unlawful cultivation of marijuana laws
- Production of hashish by chemical extraction (this offense is a felony that carries a jail sentence of three to seven years and a fine of up to $50,000).
- Unlawful sale and transportation of concentrated cannabis
Selling Marijuana to a Minor
Although California has legalized cannabis for both recreational and medical use, it is still illegal for minors. It is also a crime for an adult to sell, offer, give, encourage or employ a minor to use, sell, or transport marijuana.
HS 11361 makes it a felony offense to sell, offer, or use a minor to sell or transport marijuana. The offense carries a prison sentence of three, five, or seven years. However, if you gave or offered marijuana to minors aged 14 or older, you could face three, four, or five years in prison. Depending on your criminal history, you may be jailed for a maximum of one year in county jail and be released on felony probation.
DUI of Marijuana
As with alcohol, you commit a crime while driving while impaired from marijuana consumption. Marijuana contains two primary components: THC and CBD. CBD is a non-psychoactive substance often preferred by those in need of medical marijuana as it does not cause impairment. THC, on the other hand, causes users to become high.
Driving under the influence of marijuana is prosecuted similarly to driving under the influence of alcohol.
The key difference is that the state has no per se limit on how much marijuana in the blood causes impairment. THC does not react the same way alcohol does in the body. Its levels rise fast in the body immediately after consumption and are metabolized from the blood much faster. THC is also fat soluble and can show up in the blood up to a month or longer after consumption. This means that habitual cannabis users can be thought to be under the influence when they haven’t taken marijuana recently.
In some cases, trace amounts of THC may be found in high CBD marijuana leading to a false positive. These issues make it significantly harder for the prosecution to prove that you were driving under the influence of marijuana.
Drug recognition experts play an important role in DUI marijuana convictions. Drug recognition experts could be the police officers who have received specialized training to recognize the signs of intoxication in a DUI suspect.
Despite their training, being arrested for a DUI is still possible when you are not driving impaired. An attorney can help prepare a defense that challenges the foundation on which the charges against you are built.
If found guilty of a DUI of marijuana, you could be charged with a misdemeanor or felony. A misdemeanor charge is common if this is your first to third DUI within ten years. The penalties, which include jail time (or probation), license suspension, and fines, increase with each subsequent offense within ten years.
You may be charged with felony DUI of marijuana if:
- You have a prior DUI conviction
- You have three prior DUI convictions within the last ten years
- You caused an injury that injured or killed a third party
With the legalization of marijuana, marijuana businesses have sprung up across California. These businesses are heavily regulated and must meet certain conditions to operate. One of these conditions is licensing.
Retailers, distributors, and testing labs must obtain California Bureau of Cannabis Control licenses. Those involved in the cultivation business must obtain their licenses from the California Department of Food and Agriculture. Distributors must also be licensed by the California Department of Public Health Manufactured Cannabis Safety Branch.
Retailers can either obtain an A-license to sell recreational marijuana to adults aged 21 or older or an M-license to sell medical marijuana.
These licenses are not available to people with a conviction for:
- A violent felony
- A serious felony
- A felony involving fraud or embezzlement
- A felony conviction for giving a minor a controlled substance to use, sell, or transport
- A felony conviction for drug trafficking with sentence enhancements
Technically, even though you may be licensed to sell medical or recreational marijuana, you could still face prosecution by the federal government. At the moment, however, the Department of Justice sent out a memo to its prosecutors highlighting the factors that would trigger a charge against a medical marijuana business for violating the provisions of the Controlled Substances Act, such as allowing minors to access marijuana.
Similarly, failing to adhere to the rules associated with your licensing, you run the risk of conviction in California for the following offenses:
- Possession of marijuana
- Possession of cannabis for sale
- Sales or transportation of marijuana
- Illegal cultivation of marijuana
Business owners that wish to commercially manufacture or process cannabis products must obtain a license from the Manufactured Cannabis Safety Branch. Marijuana businesses in California must also indicate the quantity, origin, pesticides used, and type of marijuana product in packaging. They must also include the milligram amount of THC, CBD, and other marijuana components per serving on their packaging.
Note: while it is legal to operate a marijuana business in California, local authorities have the authority to ban any marijuana-related businesses in their locales.
Federal Marijuana Laws
California law legalizes the cultivation and use of both recreational and medical marijuana. However, under federal law, you could still be prosecuted for marijuana possession, cultivation, sale, or transportation, as marijuana is still classified as a Schedule 1 controlled substance with no accepted medical uses.
Federal marijuana laws take precedence over state laws. When found in violation of federal marijuana laws, you could face various penalties based on the underlying offense as follows:
- For the first offense of simple possession, you face up to a year in federal prison
- Possession of under 50 pounds of marijuana or 50 plants carries a five-year sentence in federal prison and up to $250,000 in fines.
- Possessing 50-99Kg of marijuana carries up to 20 years in federal prison
- Possessing between 100 and 999 kilograms of marijuana carries a sentence of five to 40 years in federal prison
- If you were found with over 1000 kilograms of marijuana, you face ten years to life in federal prison and up to four million dollars in fines.
Fortunately, it’s unlikely that the federal law enforcement authorities will prosecute you for marijuana offenses if you possess it for personal use in compliance with the law. The same applies to businesses that operate within the existing marijuana regulations.
However, certain circumstances increase the likelihood of federal charges for violating federal marijuana regulations. They include:
- Medical or recreational use of marijuana within a federal property in California
- Use of marijuana in HUD housing
In 2014, the House passed the Rohrabacher-Farr amendment that protected medical marijuana businesses from federal prosecution. However, it does not shield these businesses from federal prosecution if:
- They allow minors to access marijuana
- They use the proceeds of their marijuana businesses to fund criminal activities
- They use their marijuana businesses as a cover for other drug or criminal activity
- The business uses the force of violence in the cultivation or distribution of marijuana
- The business is diverting marijuana to other states
- The business is contributing to public health issues
- The cultivation of marijuana by the business creates a public safety threat or is damaging to the environment
Currently, efforts are ongoing to protect residents and business owners in states that have legalized recreational marijuana from federal prosecution, protection of legal marijuana businesses from civil asset forfeiture, and reschedule marijuana into a schedule II drug.
Since 2000, non-violent drug offenders can serve their sentence in a drug treatment program instead of jail if they are eligible. Proposition 36, or the Substance Abuse and Crime Prevention Act of 2000, allows those charged and convicted for non-violent possession charges.
If you were arrested, charged, and convicted for simple possession of marijuana, you might qualify for Prop 36 sentencing. Some marijuana offenses, such as illegal cultivation, possession for sale, or transportation, are exempt from Prop 36 drug treatment.
You may also be ineligible for the program if:
- You have a previous conviction for a violent or serious felony (a felony that resulted in a strike on your record). The exception to this rule is if the marijuana-related charge is five years have passed since your release from prison or you were a minor when you committed the offense.
- The current marijuana conviction occurred simultaneously with another non-drug-related felony or misdemeanor.
- You were armed with a deadly weapon when you committed the non-violent drug offense
- You refuse drug treatment or have previously benefited from at least two Prop 36 programs. In this case, the judge must believe you cannot benefit from further drug treatment.
During sentencing under prop 36, you must either plead guilty or no contest or be convicted for a non-violent drug possession charge. If you qualify for prop 36, the judge will inform you of your probation conditions which include:
- Family Counseling
- Community service
- Mandatory drug treatment
If you do not qualify for prop 36 sentencing, you may explore other options such as:
- Deferred entry of judgment (PC 1000)
- California Drug Court
Find a Drug Crimes Attorney Near Me
Violating any marijuana law in California could result in criminal charges. If you are faced with any marijuana-related charge, the first thing to do is contact a criminal defense attorney to help you build your defense strategy. Los Angeles Criminal Attorney has worked with clients across Los Angeles when they are arrested or charged for allegedly violating marijuana laws. Book a consultation with us at 424-333-0943.