Proposition 64, also known as the Adult Use of Marijuana Act (AUMA), legalized recreational marijuana use for adults aged 21 and older in California. Voters approved the proposition in the November 2016 election. Despite the legality of recreational use, Health and Safety Code 11357 imposes specific restrictions on marijuana possession. This section outlines legal limits for possessing cannabis and concentrated cannabis and outlines penalties for violations. It addresses factors including age, quantity, and location, especially concerning school grounds. The Fresno team at California Criminal Lawyer Group breaks down the law to help you better understand what it entails.
Possession of Marijuana Under Health and Safety Code 11357
It is easy to confuse the terms marijuana and cannabis. Marijuana describes psychoactive strains with higher THC levels associated more with recreational use. On the other hand, cannabis is the entire plant species, Cannabis sativa. It includes various strains, like industrial hemp, and those cultivated for recreational or medicinal purposes.
HSC 11357 outlines the various violations and the subsequent penalties if convicted. Let us look at each violation:
a) Possession of 28.5 grams or Less of Cannabis
If you have 28.5 grams or less of cannabis, the legal consequences vary based on your age:
For individuals under 18 years old:
A first-time offense is treated as an infraction. The violation is punishable by requiring you to complete:
- Four hours of drug counseling or education and
- A maximum of 10 hours of community service within 60 days.
A second or subsequent offense is also considered an infraction. However, the penalties increase. You will be required to complete:
- A six-hour of drug counseling or education and
- A maximum of 20 hours of community service within 90 days.
If you are 18 to 21 years of age at the time of being found in possession of 28.5 grams or less of cannabis, you will have committed an infraction. It is punishable by a fine not exceeding $100.
b) Possession of Marijuana Exceeding 28.5 grams or Excess of 8 grams of Concentrated Cannabis
If you are arrested with amounts exceeding 28.5 grams or more than 8 grams of concentrated cannabis, the penalties are as follows:
For adults in possession of these excessive amounts, the offense is a misdemeanor. Convictions will result in the following penalties:
- Not more than six months in jail,
- A fine of no more than $500 or both
However, a distinct provision applies to individuals under eighteen (18) discovered with more than 28.5 grams of marijuana or eight grams of concentrated cannabis. Rather than facing a misdemeanor charge, you will be charged with an infraction.
The infraction attracts a mandate to attend drug counseling, fulfill community service, or both.
c) Possession of Marijuana on School Grounds
You will face the following penalties for possession of marijuana on school grounds, irrespective of the quantity:
For individuals aged 18 or older:
The violation is a misdemeanor, with potential penalties including:
- A fine of up to $250 for a first offense
Subsequent offenses could result in:
- A fine of up to $500
- A jail term not exceeding ten days, or a combination of both.
For those under 18:
You commit an infraction. The violation is punishable in the following ways:
For a first offense:
- A fine not exceeding $250
For a second or subsequent offense:
- A fine not exceeding $500, or
- Imprisonment in jail for up to 10 days, or a combination of both.
The law deems possession on K-12 school grounds to have occurred in the following ways:
- During school hours — The official operational hours when the school is open for regular academic activities.
- When after-school programs are ongoing — This includes the time frame during which school-sponsored activities or programs are conducted after the conclusion of regular school hours.
Defenses You Can Assert in a Simple Possession of Marijuana in Violation of HSC 11357
It is best to enlist the services of a criminal defense attorney to assist you in determining the most effective defense strategy based on your unique circumstances. Criminal defense attorneys have the expertise to:
- Thoroughly analyze your case
- Evaluate the evidence and
- Navigate the complexities of the legal system
By partnering with a proficient attorney, you increase your chances of constructing a robust defense and securing the best possible outcome for your situation. Here is a look at some of the possible defenses your attorney could use:
a) You Did Not Possess the Marijuana
You can assert that you did not possess the marijuana. This involves scrutinizing the prosecution's evidence and countering allegations of possession with compelling arguments or evidence. This defense is ideal when you can establish a lack of physical control over the drug. Demonstrating that the marijuana was not immediately within your possession challenges the prosecution's claim.
Taking it a step further, consider introducing doubt about ownership. You can suggest that the marijuana might belong to someone else. This adds an extra layer to your defense. Ultimately, you aim to undermine the prosecution's case and provide an alternative explanation for the presence of the drug.
b) Lack of Knowledge that You Possessed the Marijuana
Mere possession is not enough to establish your guilt. Prosecutors must prove your awareness of the drugs. To counter this, you can admit to having marijuana but stress that you were unaware of its presence.
This defense aims to sow doubt about your mental state. It underscores that you were unaware of its existence despite having the substance.
For example, you borrow a friend's backpack without knowing its contents. If the bag turns out to have marijuana, a defense centered on a lack of knowledge becomes relevant. You could argue that, though you were in physical possession of the backpack, you had no idea it contained marijuana.
c) Officers Conducted an Illegal Search and Seizure
Arguing that the marijuana discovery resulted from an unlawful search and seizure challenges the legality of law enforcement's evidence gathering. By asserting a violation of your Fourth Amendment rights, the objective is to render the found marijuana inadmissible in court.
For instance, if the police conducted a search without a proper warrant or lacked probable cause, the defense can emphasize these legal breaches. Situations may arise where officers exceed the scope of their search warrants.
In some instances, police officers could conduct an illegal stop. That is, they lack probable cause to stop you. This means any search and evidence collected from the search following the stop is unlawful. It is also a violation of your Fourth Amendment rights.
Defense attorneys can file a motion to suppress, seeking to exclude the unlawfully obtained evidence. Success in this motion could lead to charges being dismissed or significantly reduced in severity.
Possession of Marijuana for Sale
Possession of marijuana is also restricted when you possess the substance for sale. This restriction is outlined under Health and Safety Code 11359.
The California Bureau of Cannabis Control (BCC) and other pertinent state agencies oversee and grant licenses for various aspects of the commercial cannabis industry. These licenses cover distinct categories, including:
- Retail licenses for dispensaries
- Cultivation licenses for growers
- Manufacturing licenses for processing and
- Distribution licenses for the transportation and delivery of cannabis products
You are guilty of possessing marijuana for sale in violation of HSC 11359 if the prosecution proves the following:
- Possession of a controlled substance — You must have physically or constructively held the marijuana.
- Knowledge of presence — Prosecutors must establish that you were aware of the presence of the controlled substance (marijuana).
- Knowledge of nature or character — The prosecution must show that you were conscious that the marijuana in your possession was a controlled substance.
- Intent to sell illegally — The case requires evidence indicating your intention to sell marijuana without the mandated state and local licenses unlawfully
- Usable amount — There must be proof that there was a usable quantity of marijuana in your possession.
Let us explore the elements in more detail.
Possession
Possession of marijuana can manifest in two ways: actual or constructive.
Actual possession involves direct physical control and immediate access to the substance. Constructive possession, on the other hand, occurs when an individual, although not physically holding the marijuana, can control it, implying knowledge and intent.
In legal contexts, both actual and constructive possession are considered when determining an individual's possession of marijuana.
Knowledge of Marijuana’s Presence
Knowledge of marijuana's presence means being aware that marijuana is in your vicinity or under your control. This implies understanding the existence of marijuana and being conscious of its presence in a specific location.
In cases of marijuana possession, accountability extends beyond mere physical possession. It includes awareness of having the substance. Thus, you could be held responsible not just for having marijuana but for knowing that it is in your possession.
For example, you likely knew the marijuana was present if it was found in your bedroom, as opposed to it being found in a shared location like the kitchen.
You Knew the Marijuana Was a Controlled Substance
Prosecutors must prove that you were conscious of the fact that the substance you possessed was illegal or classified as a controlled substance. This entails establishing that you know about the substance's specific nature and its prohibition by law.
Noteworthy behaviors, such as:
- Attempting to conceal the substance when approached by the police or
- Exhibiting unusual nervousness during questioning can be considered indicative of an awareness that the substance in possession is a controlled substance.
You Intended to Sell the Marijuana Illegally
Exchanging marijuana for cash or valuable items often strongly implies an intent to sell. However, prosecutors could also use various non-monetary exchanges involving marijuana as evidence of the same intent. For instance, offering marijuana in exchange for:
- Other controlled substances
- Sexual services
- Settling a debt
- House cleaning services, or
- An apartment
All of the above can be viewed as transactions beyond personal use. They suggest a broader commercial purpose.
Prosecutors can rely on direct and circumstantial evidence to establish an intent to sell. Direct evidence involves explicit proof, for example, clear statements or actions. These unequivocally indicate an intention to engage in the sale of marijuana.
On the other hand, circumstantial evidence comprises indirect indicators or surrounding circumstances that collectively suggest an intent to sell. This includes factors like the quantity of marijuana, the presence of packaging materials, or significant amounts of cash.
The issue of quantity then becomes an issue. A regular marijuana user consumes about an ounce weekly. This is equivalent to roughly one pound every 3 to 4 months. It is possible to be found with more than this amount by the time of your arrest, yet you were storing the marijuana for future use. You could face charges based on a law enforcement officer's expert opinion. The assertion could be that the quantity in possession indicates an intent to sell. In these situations, a criminal defense attorney comes in handy.
The Quantity Must be a Usable Amount
A usable quantity of marijuana refers to an amount suitable for consumption or use. On the other hand, traces and debris of marijuana imply leftover remnants, usually from prior use or handling. This residue is generally not considered usable. It lacks the practical quantity for consumption or use.
Penalties for Possession of Marijuana for Sale
A violation of HSC 11359 results in varying penalties upon conviction. The penalties depend on the charges you faced, which rely on the facts of your case.
a) Misdemeanor Penalties
Possession of marijuana for sale is a misdemeanor violation. The offense is punishable by the following penalties:
- A jail sentence of up to 6 months
- A fine of up to $500 or both
- Summary probation instead of a jail sentence
b) Felony Penalties
However, you risk facing felony penalties if any of the following are true:
- You have two or more prior misdemeanor convictions related to the possession of marijuana for sale.
- You have a prior conviction for:
- Murder
- A serious violent felony
- A sex crime with a sex offender registration mandate
- A sexual offense against a minor under 14 years of age or
- Gross vehicular manslaughter while intoxicated
- You possessed the marijuana and attempted to sell it to a minor.
Defenses You Can Assert in a Possession of Marijuana for Sale Case
You can challenge the possession of marijuana for sale charges by asserting any of the three defenses outlined above. Additionally, you can use any of the following additional defenses:
a) The Marijuana Was for Personal Use
You can assert that the marijuana was meant for personal use as a defense strategy. This approach acknowledges possession but contends it was for personal consumption rather than distribution or sale.
For example, highlighting elements like a small quantity aligning with personal use, the lack of packaging materials associated with distribution, or the presence of paraphernalia for personal consumption can bolster this defense. Moreover, presenting pertinent evidence, including a history of personal use, can further fortify your case.
Using this strategy requires meticulously presenting factors that challenge the intent for distribution or sale.
b) You Were Disposing Off the Marijuana
Building a defense around the notion that you were disposing of the marijuana demands a compelling and detailed narrative. It should firmly establish your intent to discard the substance. This defense requires underlining the circumstances of disposal and clarifying the absence of any motives for personal use, sale, or distribution.
Start by providing a thorough account of the events leading up to the disposal. Clearly explain why you opted to dispose of the marijuana and outline the specific responsible actions taken. Details about the disposal location, the receptacle used, and immediate steps to distance yourself from the substance can reinforce your case.
Additionally, you should stress that you lacked the intent for personal use, sale, or distribution. Make it clear that your decision to discard the marijuana was purely responsible, without any hidden agendas. This emphasis helps distinguish your disposal from potentially illegal activities.
Reinforce your narrative with witness statements or additional evidence to bolster your defense. If there were individuals present during disposal or any evidence supporting your genuine intent, present this information for corroboration.
c) You are a Primary Caregiver, and You Had the Marijuana for the Patients
In certain situations, you could find yourself mistakenly accused of intending to sell marijuana when, in reality, you serve as a primary caregiver with the substance earmarked for patients. You can use the following approaches:
- Primary caregiver role — Highlight your pivotal role as a primary caregiver. Make sure to underscore your commitment to the well-being of medical marijuana patients. Support your claim with concrete evidence, like documentation or testimonies substantiating your recognized status.
- Patient relationship — Provide a comprehensive account of your relationship with the individuals for whom the marijuana was intended. Emphasize the medical conditions involved. This will help shed light on the necessity of marijuana as a crucial element in their treatment plan. This narrative establishes a legitimate foundation for your possession.
- Medical documentation — Present the necessary medical documentation validating the medical necessity of marijuana in treating the patients under your care. Include prescriptions, medical records, or endorsements from healthcare professionals that bolster the credibility of your claim.
- Absence of sale intent — Articulate unequivocally that your possession had no connection to any intention to sell. Convey that your motive was to extend medical assistance to patients rather than seek personal financial gain.
- Legal compliance — Demonstrate strict adherence to pertinent medical marijuana laws and regulations. Furnish evidence attesting that your actions were well within legal boundaries. You should show that your distribution of marijuana was aligned with medical guidelines.
By portraying yourself as a primary caregiver and showing the lawful nature of your actions within the framework of medical marijuana regulations, you aim to dispel any misconceptions regarding an alleged intent to sell.
c) You Planned to Share the Marijuana With Your Friends and Not to Sell
In specific circumstances, you could encounter legal complications arising from the possession of marijuana despite your intention being limited to sharing it among friends without any inclination toward commercial transactions. You could argue that the marijuana was for personal use and not for commercial use.
You start by showing your intent to share the marijuana exclusively among friends. Clearly articulate the social nature of the possession. Be sure to underscore the absence of any profit-driven motivation. Emphasizing the non-commercial nature of the undertaking is pivotal in setting your case apart from instances involving the sale of marijuana.
If there were any communications or agreements with friends about the sharing of marijuana, collate and present this evidence to substantiate your assertion. Text messages, social media exchanges, or written agreements can be compelling supporting documentation.
Furthermore, be sure to point to the absence of paraphernalia associated with commercial sales, for example, packaging materials or scales. This distinction reinforces your defense because it shows that your possession aligns more with social sharing than commercial distribution.
The inclusion of witness statements can be instrumental in reinforcing your defense. Should the friends who intended to receive the marijuana be willing to furnish statements affirming your intent to share, their testimonies can be significant.
Find an Experienced Criminal Defense Near Me
Although marijuana is legal, its possession can still lead to significant legal consequences. However, the key to effectively challenging these charges is securing the assistance of a criminal defense attorney. Your attorney will evaluate your case. This involves a thorough examination of the evidence against you, a scrutiny of police procedures, and the identification of potential legal issues forming the basis of your defense.
Capitalizing on our expertise, our team will settle on the best defense strategy based on the facts of your case.
For those facing marijuana possession charges in Fresno, contact the California Criminal Lawyer Group. We will guide you and provide crucial support. We will help you navigate the legal challenges while advocating for your rights. To explore your legal options and mount a strategic defense, contact us today at 559-712-8377 for assistance. Enlist our experience as we work to ensure we secure the best possible outcome for your case.
