Although proposition 64 (Prop 64) legalized the recreational use of marijuana, it did not eliminate all laws dealing with or relating to the drug. Instead, Prop 64 drastically changed marijuana laws, meaning it is still a controlled drug substance in the eyes of the law.
According to Health and Safety Code section 11357 HS, it is a crime to possess marijuana under certain circumstances you will learn in this article. Because laws relating to marijuana are complex and continue to change daily, you do want to talk with an attorney if you are in trouble with the law for any alleged marijuana offense.
Your attorney will help you understand specific laws relating to your case and defenses that could work out in your favor for an appealing outcome. Reliable defense attorneys at Los Angeles Criminal Attorney have successfully helped several clients fight this charge in court, and we can help you too.
Depending on the specific facts of your case, there is a lot our credible defense attorneys can do to challenge the allegations you are facing to give you the best chance to walk home with no or little jail time.
What to Keep in Mind If You Are Under Investigation for an Alleged Possession of Marijuana Offense
The steps you will take if you are under investigation for alleged possession of marijuana offense can significantly influence the outcome of your case in the legal justice system that could seem indifferent or unfair. Here is what to keep in mind if you are under investigation for an alleged HS 11357 violation charge to increase your chances of obtaining the best possible outcome:
i. Remaining Silent Will Have No Impact on Your Case
Unlike what most people think, you do not have to speak to the officers if you are under investigation or arrest for any alleged offense.
Even if you are confident of your innocence, the prosecutors or arresting officers could misinterpret your well-intentioned talk and use your use statements against you. Hence, it is wise to remain quiet if you are under arrest or investigation as a culprit in a criminal case involving HS 11357 violation to protect your best interests and legal rights.
ii. Resisting an Arrest Could Make Your Underlying Alleged Case Severe
While we all have a legal right to live unbothered without unnecessary interference by the authorities, police officers could arrest you if they reasonably suspect you are a culprit in criminal activity. When that happens, you could feel the need to resist the arrest because they do not have a court-approved arrest warrant.
However, it is wise you cooperate with them because resisting an arrest is a crime on its own and could make the underlying alleged case severe. Further, if the arresting officer sustains an injury because of your conduct or attempt to resist an arrest, the prosecutor could charge you with assault, making your case severe.
For these reasons, it would help you remain calm during every stage of the prosecution process to increase your chances of obtaining the best possible results on the alleged HS 11357 violation charge.
iii. You Have Constitutional Protection Against Illegal Search and Seizure
One of the most important rights to remember upon an arrest is the legal right against illegal searches and seizures. If an officer obtains evidence on your person, vehicle, or house through an illegal or warrantless search, you could have a viable ground to secure a lighter charge or case dismissal in court.
In the eyes of the law, any evidence that an officer obtains through unlawful searches is inadmissible, meaning it will not apply against you in court. Therefore, if the arresting officer obtained the marijuana in question through an illegal search, the court could drop or reduce the alleged HS 11357 violation charge.
iv. Hiring an Attorney Can Increase Your Odds of Beating the Alleged Case
Even if you are not formally charged with the alleged offense, retaining an attorney's services is a decision you cannot regret. During the investigation process, your attorney can be your legal counsel to help you understand the specific statute that defines the alleged marijuana charge in a way you can understand best.
With the help of an experienced defense attorney, you could convince the arresting officers to drop the case without even passing through the arrest and booking process, which leaves you with a criminal record. Ensure the attorney you will decide to hire is licensed, qualified, experienced, and reputable for the best possible outcome on the alleged HS 11357 violation charge.
Obtaining a Jail Release After an Arrest for an Alleged HS 11357 Violation Charge
Undoubtedly, your first concern if you are in police custody or jail for any alleged offense is how you will secure your freedom. While it is natural to worry about your freedom, there are a few steps you must adhere to before you obtain your freedom. One of these steps is completing an administrative procedure known as booking, where the officer in charge will:
- Take your fingerprint
- Record your address, date of birth, the allegations you are facing, and your name
- Conduct a thorough search on your person
- Take your clothing and other personal properties like jewelry and watches
- Check whether or not you have other pending charges or warrants
- Check your health condition
If the officers do not have a court order or warrant to arrest you for the alleged possession of marijuana charge, they would typically release you to go home soon after the booking procedure unless:
- You are not ready to give the officers your correct address and name
- You are likely to commit another crime before your scheduled court date
- You could threaten an eyewitness who could be providing evidence against you
- You are likely to fail to appear on your scheduled court date to prove your innocence
- You are likely to destroy the evidence once you are out of legal custody
When the police decide to give you a jail release without bail after an arrest, they will most likely give you a court appearance notice or citation, which you must sign before you walk out of jail. Typically this appearance notice will state the alleged HS 11357 violation charge and the time and date you must appear in court to challenge the allegations.
However, when the officers decide to keep you behind bars after an arrest for alleged possession of marijuana charge, the court will determine whether or not you qualify to be out of custody, pending your case's judgment. If a judge is available, the arrest officers must take you to court for arraignment and bail hearing within twenty fours (24) hours.
During the bail hearing, the arresting officers will consider the following factors when determining your eligibility for a jail release on bail:
- The chances that you will appear in court as required after your release
- The severity of the allegations you are facing
- Your history of showing up in court after a jail release on bail
- Your criminal background or history
If you are eligible for a jail release on bail, you should clear the required amount as soon as possible to secure your freedom. Bail is typically the money a defendant or arrestee pays to a court's clerk to secure a jail release before the verdict of the alleged case at trial.
While you can post or pay your bail in cash, most arrestees prefer working with a bond agency to obtain a surety bond at a pocket-friendly cost.
Generally speaking, hiring a skilled attorney can increase your chances of obtaining a jail release upon an arrest to have your deserved freedom until your case's verdict. Whether posting cash bail or surety bond is the best option for you is a legal decision your attorney can help you make.
Common Marijuana Crimes Chargeable and Punishable Under HS 11357
According to Prop 64, any person aged 21 and over can lawfully possess or buy more than 28.5 grams (an ounce) of dried marijuana or not more than 8 grams of concentrated cannabis "hashish" for personal use.
While marijuana, also commonly known as pot or weed, is legal under this statute, you can only smoke or consume it in a private home or an apartment if you have consent from the property owner. That means your employer or landlord has the right to prohibit marijuana smoking in the workplace or apartment in which you reside, respectively.
Although the enactment of Prop 64, also known as the Adult Use of Marijuana Act (AUMA), legalized the non-medical personal use of marijuana, simple possession of pot could land you in trouble with the law. Below are common ways you can violate HS 11357:
a. The Marijuana in Question Exceeds the Legal Limit
Since HS 11357 allows you to possess and buy up to 28.5 grams of pot, having more than this legal limit or quantity in your possession could attract a criminal charge. According to this statute, it is a misdemeanor offense for any adult aged 21 and older to have excessive marijuana in his/her possession (more than an ounce). A conviction at trial will attract the following penalties:
- Up to $500 maximum fine
- Not more than six (6) months of jail time
However, if you are 18 and above and allegedly had more than an ounce of marijuana in your possession or more than eight grams of hashish, the prosecutor will file your charge as an infraction. In that case, a conviction will attract less severe penalties, including:
- Perform community service
- Attend a counseling program
b. Possession of Hashish or Dried Marijuana by a Minor
HS 11357 also makes it an infraction offense for anyone aged below 21 years to possess or buy any amount of concentrated or dried marijuana unless you have a valid prescription from a licensed doctor.
If you are guilty of an HS 11357 violation as a minor or under 21, your punishment will not include a jail term because it is an infraction offense. However, you should expect the following potential penalties:
- A fine not exceeding $100 if you are aged 18 and over
- Attend a drug education or counseling session for not more than four (4) hours and perform community service for less than ten (10) hours if you are a first-time offender aged under 18
- Attend up to six (6) hours of drug counseling or education program and not less than twenty (20) hours of community services if you are a repeat offender aged under 18
c. Possession of Hashish or Dried Marijuana on a School Ground
Having dried or concentrated marijuana in your possession while inside or on the grounds of an open K-12 school is another way you can violate HS 11357, which prohibits unlawful possession of marijuana. For the sake of this statute, the school's being "open" means it was during usual school hours or perhaps after school programs.
If you are an adult (aged 18 or older), the prosecutor will pursue your case as a misdemeanor, which can attract a fine not exceeding $250 upon conviction. However, if you are a minor aged under 18, the prosecutor will file your marijuana possession case as an infraction punishable by:
- Drug treatment
- Community service
Despite President Joe Biden's pardoning of all simple marijuana possession convictions on October 6th, 2022, possession of pot, marijuana, or weed remains illegal under federal law. The services of a defense attorney with significant experience in drug possession cases can go a long way if you are in trouble with the law for an alleged HS 11357 violation charge.
In addition to providing you with relevant legal advice, your defense attorney will represent your best interests in court and defend your legal rights aggressively to obtain the best possible verdict on the alleged charge.
How to Challenge the Alleged Possession of Marijuana Charge Under HS 11357
Once you enter a "not guilty" plea and a plea deal is unavailable at the arraignment hearing, the court will schedule your case's trial date. During the trial date or hearing, the judge or jury presiding over your case will review your case details and listen to arguments from the prosecutor and your defense attorney to determine whether or not you are guilty of the alleged marijuana offense.
Since the standard of proof at trial should be beyond a reasonable doubt, a reliable attorney can raise various legal defenses to challenge the prosecutor's marijuana possession case against you. Some of the defenses a seasoned defense attorney can apply to the alleged HS 11357 violation charge include (but are not limited to):
The Alleged Marijuana Was Not in Your Possession
To convict you for HS 11357 violation, the prosecutor must prove to the court, using clear and persuasive evidence, that you did have marijuana in your possession at the time of the arrest. For the sake of this statute, the alleged pot is in your possession if it was:
- Within your person, meaning you have immediate access to it
- Within your car, apartment, or any other property that you have control of and the right to control or own
That means if the pot the police seized in your apartment belonged to someone else or your roommate, it would be a legal defense to argue that you did not possess the drug for a favorable outcome.
You Were Unaware You Had the Alleged Marijuana in Your Possession
Similar to the above defense, your attorney can argue that you were unaware that the alleged marijuana was in your possession, even if you had physical control of it at the time of the arrest. According to HS 11357, it is not enough to prove that you had possession of the alleged marijuana to obtain a conviction against you.
The prosecutor has a legal burden to prove that you were also aware the marijuana was in your possession. That means if your friend forgets his/her marijuana in your vehicle, you will not be guilty of an HS 11357 violation because you did not know of its presence.
The Officers Obtained the Alleged Marijuana Illegally
Often, marijuana-related cases will trigger unlawful search and seizure issues. According to the 4th Amendment of the Constitution, you have a legal right to stay free from unreasonable or illegal searches.
That means a police officer has no legal right to search your person, vehicle, or person without a legal search warrant. Even if they have a valid warrant, they cannot search a location or property beyond the warrant's scope.
When these issues arise in the alleged HS 11357 violation charge, your defense attorney can file a motion to suppress the illegally obtained evidence. If successful, the court could decide to:
- Dismiss the alleged charge
- Reduce the alleged charge to a lighter charge, with less severe consequences upon conviction
Frequently Asked Questions About the Possession of Marijuana Offense Under HS 11357
Below are well-thought answers to some of the most frequent and common questions that most arrestees or defendants will ask about the possession of marijuana offense under HS 11357:
1. Will I Qualify for a Pretrial Drug Diversion Upon an Arrest for an Alleged HS 11357 Violation Charge?
Yes, since the alleged charge is non-violent and non-severe in the eyes of the court, you could be eligible for a pretrial drug diversion program to divert your case from the tricky criminal justice system. According to Penal Code (PC) 1000, the judge can dismiss the alleged marijuana possession case if you complete the required drug treatment program and adhere to the required terms.
If you fail to complete the treatment program, the court will resume your alleged HS 11357 violation case, meaning you have to show up in court to defend the charges for the best possible outcome. While most simple drug possession crimes like HS 11357 violation charges are eligible for diversion under PC 1000, you could be ineligible if the following is true:
- In the past five years, you have had one or more convictions for a drug charge that is ineligible for diversion under PC 1000
- In the past five years, you had one or more felony convictions
Your attorney can help you determine whether or not you are eligible for this pretrial diversion option to avoid the uncertainty of undergoing the usual prosecution process.
2. Will I be Eligible for Expungement Upon a Conviction for an Alleged HS 11357 Violation Charge?
While the passage of Prop 64 modified marijuana laws, legalizing adult use of marijuana, a conviction for HS 11357 violation will result in a criminal record. Having a criminal record means a prospective employer or landlord will know you have a conviction record for possession of marijuana charges, and that is not good because:
- Most employers are reluctant to accept with criminal histories as employees in their business or companies
- Similarly, most landlords prohibit marijuana use in their apartments, meaning if you have a conviction record for HS 11357 violation, the landlord could refuse your tenant application form or rental application
Fortunately, you can avoid all these detrimental consequences of having a criminal record by obtaining an expungement under PC 1203.4. While expunged criminal records are still accessible by law enforcement officers and the court, an expungement can clear your criminal record from the eyes of the public.
In most cases, you will qualify for an expungement under this statute for a "fresh" start in your life unless:
- You are still serving your sentence for HS 11357 violation charge conviction
- You are still on your probation for HS 11357 violation charge conviction
- You currently have a new criminal charge
Find a Reliable Defense Attorney Near Me
We invite you to contact reputable defense attorneys at Los Angeles Criminal Attorney at 424-333-0943 if you are in legal custody or under investigation for alleged possession of marijuana charges. While it is a misdemeanor offense, this charge can negatively impact your reputation and life quality after conviction at trial.
We will thoroughly and keenly investigate your case to build winning arguments backed up with proper evidence to help you obtain a favorable outcome on the alleged HS 11357 violation charge.