Updated September 7, 2020

Playlist: New California Marijuana Laws

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Recreational use of marijuana became legal in California on January 1, 2018. The legalization is the result of voter passage of Proposition 64 in November 2016.

Adults age 21 and older may now possess up to one (1) ounce of dried marijuana or eight (8) grams of concentrated cannabis under California law. They may also grow up to six (6) plants for their personal use, subject to certain restrictions.

Adults who exceed these amounts can be charged with a misdemeanor and punished by up to 6 months in county jail and/or a fine of up to $500.

People under age 21 who possess marijuana can be charged with an infraction and sentenced to a fine (if at least 18) or to drug counseling and community service (if under 18).

Restrictions on sale and transport

It is still a crime to sell marijuana in California — or to possess it with the intent to sell it — other than with both a state and local license.

For most people, violation of California’s marijuana laws is a misdemeanor. However, people with serious criminal history – including multiple prior drug convictions – can be charged with a felony for violating California drug laws.

Marijuana is still illegal under federal law

Unfortunately, marijuana remains a Schedule 1 drug under the United States Controlled Substances Act. And U.S. Attorney General Jeff Sessions recently rescinded an Obama-era policy “hands-off” policy with respect to people who comply with state marijuana laws

Under the new policy, federal prosecutors in each state are free to decide whether to arrest and prosecute marijuana users and sellers – even if they are in compliance with state marijuana laws.

We do not anticipate federal prosecutors in California going after people who use or possess marijuana in accordance with California and local regulations. We do, however, caution people to understand and comply with those laws, including restrictions on the use of marijuana at work.

To help you understand the nuances of laws on marijuana, our California criminal defense lawyers will answer the following top 10 questions:

1. Simple possession – Health and Safety Code 11357

Health and Safety Code 11357 HS is the California marijuana law that sets forth the rules for personal possession of marijuana.

Possession of not more than 28.5 grams of marijuana (a bit more than an ounce) for personal use is legal in California as of January 1, 2018, for people age 21 and older. So is the possession of up to eight (8) grams of concentrated cannabis (hasish).

Note that there are restrictions on where marijuana can be consumed, however.

Marijuana must be smoked or consumed in private, with the consent of the property owner. This means that your landlord or employer can prohibit your use of marijuana at work or on a property you rent.

Additionally, marijuana may not be smoked at any location where the smoking of tobacco is legally prohibited.

When is possession of marijuana still a crime?

The following, however, are crimes (either California misdemeanors or California infractions):

Possession of marijuana by anyone under 21,

Possession of more than 28.5 grams of marijuana or more than 4 grams of concentrated cannabis,

Possession of marijuana or concentrated cannabis on the grounds of any K-12 school while school is in session.

Punishment for illegal possession of marijuana is as set out in the chart below.

HS 11357 marijuana possession offense Type of offense Penalty Possession of marijuana or concentrated cannabis by people under 21 Infraction Drug counseling and community service (defendants under 18); fine of up to $100 (defendants 18 and over) Possession of more than 28.5 grams of marijuana or more than 8 grams of concentrated cannabis (defendants 18 and over) Misdemeanor Up to 6 months in county jail; up to $500 fine Possession of more than 28.5 grams of marijuana or more than 4 grams of concentrated cannabis (defendants under 18) Infraction Drug counseling and community service Possession of marijuana or concentrated cannabis on the grounds of a K-12 school (defendants 18 and over) Misdemeanor Up to $250 fine for a first offense Possession of marijuana or concentrated cannabis on the grounds of a K-12 school (defendants under 18) Infraction Drug counseling and community service

HS 11357 marijuana possession offense Type of offense; penalty Possession of marijuana or concentrated cannabis by people under 21 Infraction; drug counseling and community service (defendants under 18); fine of up to $100 (defendants 18 and over) Possession of more than 28.5 grams of marijuana or more than 8 grams of concentrated cannabis (defendants 18 and over) Misdemeanor; up to 6 months in county jail; up to $500 fine Possession of more than 28.5 grams of marijuana or more than 8 grams of concentrated cannabis (defendants under 18) Infraction; drug counseling and community service Possession of marijuana or concentrated cannabis on the grounds of a K-12 school (defendants 18 and over) Misdemeanor; up to $250 fine for first offense Possession of marijuana or concentrated cannabis on the grounds of a K-12 school (defendants under 18) Infraction; drug counseling and community service

2. Cultivation – Health and Safety Code 11358

California Health and Safety Code 11358 HS (marijuana cultivation), as amended by Proposition 64, allows most people who are 21 and over to cultivate up to six (6) marijuana plants. Marijuana must be grown indoors, unless outdoor growth is permitted under local regulations (such as those in effect in unincorporated areas of Los Angeles County).

Regardless of whether it is grown indoors or outdoors, the marijuana plants must be in a secure location not accessible to minors.

People under 21 who grow any amount o marijuana are guilty of an infraction. If under 18 years of age, they can be required to attend drug counseling and perform community service. People 18 and over (but under 21) who unlawfully grow marijuana may be fined up to $100.

And for adults, cultivating over six marijuana plants remains a crime. Most defendants who plant, cultivate, harvest, dry or process more than 6 living marijuana plants will be charged with a misdemeanor and face up to six (6) months in county jail and/or a fine of up to $500.

Cultivating more than 6 marijuana plants can be charged as a California felony, however, for the following defendants:

People with serious violent felonies on their record;

Registered sex offenders;

Defendants who have two (2) or more prior convictions for cultivating more than six marijuana plants; and

Defendants who violate certain California environmental laws in their marijuana cultivation activities.

3. Possession with Intent to Sell – Health and Safety Code 11359

Proposition 64 legalized the sale of marijuana--but only for businesses that obtain and operate in accordance with both a state and local license.

As a result, possession of marijuana with the intent to sell it without a license remains a crime under Health and Safety Code 11359 HS (California’s possession of marijuana for sale law).

For most adult defendants, HS 11359 possession for sale without a license is a misdemeanor, carrying the following penalties:

Up to six (6) months in county jail, and/or

A fine of up to five hundred dollars ($500).

But marijuana possession for sale without a license is a felony if any of the following is true:

You have a prior conviction for one of a list of particularly serious violent felonies, including murder, sexually violent offenses, sex crimes against a child under 14, or gross vehicular manslaughter while intoxicated, or a sex crime that requires you to register as a sex offender; You have two (2) or more prior misdemeanor convictions for marijuana possession for sale; or You possessed marijuana for sale in connection with a knowing sale or attempted sale to someone under 18.

For these defendants, possessing marijuana for sale is punishable by 16 months, or two or three years in county jail.

Proof of intent to sell marijuana without a license is usually made by circumstantial evidence (“indicia of sale”).

Such evidence can include:

a large quantity of marijuana,

the presence of items such as baggies and scales,

pot divided into multiple baggies or containers,

the presence of cash and/or weapons, and/or

the opinion of the arresting officer that the marijuana was for sale.

4. Sale of Marijuana without a License – Health and Safety Code 11360

Under California’s marijuana legalization law, you can only sell marijuana if you have obtained a license to do so. These licenses will be issued by a newly-created Bureau of Marijuana Control.

If you don’t have a license, then selling pot--or transporting it in order to sell it--is still a crime under California Health and Safety Code 11360 HS. Under Prop 64, HS 11360 has become a law intended to prohibit a “black market” in marijuana.

For most defendants, unlicensed sale or transport for sale of marijuana is a misdemeanor punishable by up to six (6) months in county jail and/or a fine of up to one thousand dollars ($1,000). (For defendants under 18, it is an infraction. Also, giving away or transporting for sale up to 28.5 grams of marijuana without a license is an infraction.)

But sale/transport for sale of marijuana without a license to do so is a felony for the following defendants:

Defendants who have a prior conviction for one of a list of particularly serious violent felonies, including murder, sexually violent offenses, sex crimes against a child under 14, or gross vehicular manslaughter while intoxicated, or a sex crime that requires them to register as a sex offender; Defendants who have two (2) or more prior convictions for HS 11360 sale/transportation of marijuana; Defendants who knowingly sold, attempted to sell, or offered to sell or furnish marijuana to someone under 18; and Defendants who imported or attempted or offered to import into California, or transported or attempted/offered to transport out of California for sale, more than 28.5 grams of marijuana or more than four grams of concentrated cannabis.

In any of these scenarios, black market sale or transportation for sale of marijuana under HS 11360 is punishable by two (2), three (3) or four (4) years in jail.

Finally, transporting marijuana without intent to sell it, or giving marijuana away, is not a crime in California so long as both of the following are true:

You transport or give away not more than 28.5 grams of marijuana or eight grams of concentrated cannabis, and Any people you give marijuana to are 21 years of age or older.

5. Selling marijuana to a minor – Health and Safety Code 11361

California Health and Safety Code 11361 HS makes it a felony for anyone 18 years or older to sell marijuana to a minor. This law is unchanged by Proposition 64/marijuana legalization.

Section 11361 also makes it a felony to use a minor unlawfully to:

transport,

carry,

sell,

give away,

furnish,

administer,

prepare for sale, or

peddle…

any amount or type of marijuana.

Sentences for violating California Health and Safety Code 11361 are served in California state prison, rather than county jail.

If the minor involved is under 14 years of age, the penalty is:

three, five or seven years in state prison.

If the minor is over 14, but less than 18, the penalty is:

three, four or five years in state prison.

6. Concentrated Cannabis

“Concentrated cannabis” is the separated resin (whether crude or purified) obtained from the marijuana plant. It is commonly referred to as “hashish” or “hash.”

Concentrated cannabis is considered to be marijuana under California law. This means, among other things, that people entitled to possess, cultivate, or transport medical marijuana may do the same with concentrated cannabis.

Also, under Proposition 64, simple possession of concentrated cannabis for recreational use is legal--but a person may only possess up to 8 grams for personal use.

7. Driving with Marijuana — Vehicle Code 23222(b)

California Vehicle Code 23222(b) VC prohibits driving in possession of up to 28.5 grams of marijuana. It is a sister provision to the law against driving with an open container of alcohol in your vehicle. Proposition 64 did not change this law.

Driving with marijuana is an infraction. It can be punished by:

up to a $100 fine.

8. Medical Marijuana

Medical marijuana was made legal by voter approval of Proposition 215. It is known as California’s Compassionate Use Act of 1996 (the “CUA”). The CUA is set forth in California Health and Safety code 11362.5 HS and subsequent sections.

Proposition 64, legalizing recreational marijuana, was passed two decades after Prop 215. But even though recreational marijuana is legal, California’s medical marijuana laws and system are still relevant.

For one thing, the strict quantity limits applicable to recreational do not apply. Medical marijuana users can, with a doctor’s recommendation, possess as much marijuana as their condition reasonably demands.

Additionally, people under 21 may use and cultivate medical marijuana with a doctor’s recommendation (and, if they are under 18, the consent of a parent).

Who may legally use medical marijuana?

Under the CUA, you are legally entitled to use medical marijuana if a doctor has recommended it or approved it for the treatment of a serious medical condition such as:

AIDS,

Anorexia,

Arthritis,

Cancer,

Migraines,

Multiple sclerosis,

Seizures, or

Any other debilitating condition, including chronic pain or serious nausea.

The definition of a “primary caregiver”

You are a “primary caregiver” if you are:

designated for that purpose by the patient, and

are consistently responsible for the patient’s housing, health, and/or safety.

What may medical marijuana patients and primary caregivers legally do?

California’s medical marijuana laws authorize possession, cultivation, transport and administration of medical marijuana, as long as the marijuana is:

for the patient’s personal use, and

in an amount reasonably related to the patient’s current medical needs.

Under no condition, however, may they sell marijuana, or possess or cultivate more than is reasonably related to the patient’s medical use.

Proposition 64 requires all medical marijuana users to obtain a new recommendation from their physician by January 1, 2018.

Medical marijuana dispensaries

California law also allows distribution of medical marijuana through non-profit medical marijuana dispensaries, collectives or cooperatives.

There are strict state and local requirements for the operation of dispensaries. But legally operating dispensaries may give marijuana to medical marijuana patients and their primary caregivers, or sell it to them “at cost.”

In the wake of Proposition 64, it is unclear whether medical marijuana dispensaries will continue to operate long-term or will be folded into the new market for legal recreational marijuana.

9. Federal Law

The federal Controlled Substances Act

Title 21 of the United States Code is the federal “Controlled Substances Act” (“CSA”). Under the CSA, marijuana is considered a Schedule 1 hallucinogenic drug. This means the government believes it has a high potential for abuse and no currently accepted medical use.

The CSA takes precedence over the laws of California. Technically, therefore, when you sell, transport, or give away marijuana, you violate federal law--even if you are abiding by California’s medical marijuana law or recreational marijuana legalization law.

Penalties under federal law

Marijuana-based offenses are punished severely under federal law. Just a couple of examples will illustrate this point.

A first offense for simple possession of marijuana is punishable by:

a fine of up to $1,000, and

up to one year in federal prison.

Cultivation, possession with intent to sell, and/or sale of less than 50 pounds of marijuana or 50 plants is punishable by:

up to five (5) years in federal prison, and

a fine of up to $250,000.

Fines and periods of incarceration increase for greater quantities of marijuana or conviction of subsequent offenses.

In addition, if you are convicted of any federal drug offense, you may also be ordered to reimburse the government its “reasonable costs” of investigating and prosecuting the offense.

When federal prosecution for marijuana is likely to occur

As a practical matter, you are unlikely to be prosecuted under federal law if you use or cultivate pot for personal use, particularly in compliance with Prop 64. The federal government is primarily interested in prosecuting large-scale traffickers and those with links to organized crime.

However, U.S. attorney general Jeff Sessions recently rescinded Obama-era rules that prevented federal prosecutors from going after people who use marijuana in accordance with state laws. Federal prosecutions are now free to decide whether to enforce federal rather than state laws on marijuana use.

This action has been significantly criticized and it is not clear what federal prosecutors in California will do. We do not, however, anticipate federal prosecutors going after the casual drug user who complies with California’s marijuana laws.

Federal law applies on federal property within California

Users of marijuana — both recreational and medical — should be aware that federal law, rather than California law, applies on federal property within the state of California. Examples of federal property include:

public airports,

federal buildings,

post offices,

national parks, and

federal courthouses.

If a violation of marijuana law occurs on federal property, it can be punished under federal law. And 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.

HUD Housing

The U.S. Department of Housing and Urban Development (“HUD”) allows local housing authorities to set their own policies on marijuana use.

The federally assisted housing can legally be denied to medical or recreational marijuana users. And although rarely enforced, the use of marijuana in HUD housing can subject patients to the termination of other federal benefits, including food stamps.

10. Marijuana and Immigration

The sale of marijuana – and even possession with intent to sell — is an “aggravated felony” for purposes of the Immigration and Nationality Act. This is true regardless of whether you were convicted under California or federal law.

The immigration consequences of a criminal conviction involving an aggravated felony include deportation.

If you are an undocumented alien, therefore, it is highly recommended that you consult with an experienced criminal defense attorney if you are accused of a crime involving marijuana.

Call us for help…

Call us for help…

For more information about California’s marijuana laws, or to discuss your case confidentially with one of our criminal defense attorneys, please don’t hesitate to contact us at Shouse Law Group. Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada marijuana laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.

¿Habla español? Visite nuestro sitio Web en español sobre las leyes de la marihuana en California.

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