California Marijuana Laws
Marijuana for medical use is legal in the state of California. Some studies have shown that medical marijuana can help patients with many ailments such as cancer, glaucoma, eating disorders and migraines.
Medical marijuana can be used as a pain management technique for many disorders. Medical marijuana is regulated by the California Department of Health and safety. California Marijuana Laws require that a patient have a medical marijuana identification card (MMIC or “Red Card”). Medical marijuana still can only be used for medical purposes.
The issue of California marijuana laws has been controversial. Laws can change rapidly because it is still a new concept and not widely accepted. It is important to educate yourself regarding the laws surrounding marijuana and know your rights in order to avoid criminal penalties.
“Robert Helfend was such a helpful attorney! I wouldn’t have ever made it through my marijuana possession case without him. He really took time to understand my case, and find all of the evidence he needed to get me acquitted. I highly recommend him for and criminal defense case!” Anonymous, CA
Table of Contents:
- Possession of marijuana
- Distribution, sale or gift of marijuana
- Cultivation for Non-Medical Use”
- Driving offenses and DUID
- Alternative Penalties for Marijuana Offenses
History of medical marijuana in California
Proposition 215 Ballot and Votes
Proposition 215 was passed on November 5, 1996 as the Compassionate Use Act. The author of the ballot initiative was Dennis Peron of Californians for Medical Rights. The act allows caregivers and patients to possess and cultivate marijuana without criminal penalties. Proposition 215 was voted in favor by 5,382,915 votes to 4,301,960 votes, passing by a 55.38% margin. Medical marijuana is regulated under section 11362.5 of the Health and Safety Code of California.
Language of Proposition 215
Here is a summary of Proposition 215:
1. Ensuring that residents of California can use and obtain marijuana for medical purposes as long as it has been recommended by a doctor. The doctor must state that the patient would benefit from the use of marijuana.
2. Ensuring that patients and their physicians are not subject to criminal prosecution or sanction given that the use is for medical purposes and recommendation came from a physician.
3. Encouraging the state and federal governments to work together to provide a plan for safe and affordable distribution to medical marijuana patients.
Battle Between Federal and State Laws
Since the Compassionate Use Act passed in 1996, a legal battle ensued between federal laws and California state laws. While marijuana for legal use was passed in the state of California, it was still considered an illegal drug by the federal government under the Controlled Substances Act.
The federal government still prosecuted marijuana under federal law, conducted raids and used other tactics in order to slow the use and distribution of marijuana in California. Federal law has the ability to trump state laws due to article VI of the Constitution which states that the federal government will prevail in any conflicting legislation.
Under the Bush administration, the federal government actively prosecuted medical marijuana. Federal officials heavily scrutinized marijuana cultivators, dispensary owners and doctors who prescribed marijuana for patients.
Medical Marijuana Related Legal Case Studies
There have been a number of case studies involved with the legalization of medical marijuana. With the conflicting federal and state laws, it has led to some gray areas in the legal process. This is why it is important to seek experienced legal advice and hire a criminal defense attorney if you or anyone you know is affected by charges related to medical marijuana in California.
Below is some history on some of the notable cases related to medical marijuana. The results of the cases show a progression of the way legal views are changing in regards to federal and state laws.
Gonzales v. Raich – 2005
The Supreme Court ruled that the federal government still has the legal right to ban possession and cultivation of marijuana, even in states where medical marijuana is deemed legal. In this case, caregivers attempted to sue the government for interfering with their affairs as medical marijuana caregivers. The government used the Controlled Substances Act as their argument and were awarded the winning ruling in this case.
Garden Grove v. Kha – 2008
The main focus in Garden Grove v. Kha was whether the state police could legally confiscate marijuana from medical patients on the basis of federal law. The Superior Court of Orange County ordered law officials to return medical marijuana confiscated from a resident of Garden Grove because it was prescribed by a physician. The city still refused to return the medical marijuana and appealed the decision. The District Court of Appeal, again ordered the medical marijuana be returned to Kha. Garden Grove attempted to have the case brought before the California Supreme Court with the argument that marijuana possession is illegal under federal law. The Supreme Court refused to examine the case, making the ruling by the Superior Court final.
People v. Kelly — 2010
People v. Kelly overturned a conviction for possession of 12 ounces of marijuana. The defendant’s previous guilty conviction was due to the limits in the medical marijuana laws in 2003 stating that there was an 8-ounce limit. Similar cases had been tried in smaller court cases, but this case stands out because it was the first time it had been examined in appellate court. The court ruled that SB 420 limits are unconstitutional. The full court ruling is available here. California NORML still advises patients of proposition 215 to follow the SB 420 guidelines which limits patients to 6 mature or 12 immature marijuana plants, and 8 ounces of dried or processed marijuana.
Getting a Medical Marijuana Prescription in California
-Diseases and Conditions that can qualify for Medical Marijuana:
Proposition 215 states anyone with illnesses “deemed appropriate and has been recommended by a physician” can qualify for the use of medical marijuana. Some of the most common are:
-Cancer – Seizures
-Chronic pain – Arthritis
– AIDS or HIV – Anorexia
– Migraines – Cachexia
– Nausea – Muscle spasms
-Steps to apply for a medical marijuana card:
1. Get a doctor’s recommendation for illnesses that qualify for medical marijuana. California NORML provides an online directory of physicians.
2. Gather the following documents:
– Government issued identification such as driver’s license or state issued ID card.
– Proof of residency in California: rental lease, utility bill or California motor vehicle registration
3. Apply in person at the program specified for your county. At that office, you will fill out an application form, pay a fee and have your photo taken for the MMIC card.
Marijuana Charges in California
Although marijuana for medicinal purposes is deemed legal, recreational use is still prohibited by law. There are a number of different criminal charges you could be faced with including possession, possession with intent to sell, sale to a minor, transport, import or distribution, cultivation, paraphernalia and DUI, to name a few.
Of course, the level of the charges will depend on the situation and circumstances involved and the severity of the crime. This is why it is so important to hire an experienced criminal defense attorney if you find yourself involved in any marijuana related charges.
Marijuana Related Crimes and Penalties
The table below shows a breakdown of possible marijuana related crimes and penalties. These penalties can vary per county and depending on the circumstances involved.
Possession – Less than 28.5 grams:
As of 1/1/2015, possession of marijuana in California without a prescription of under 28.5 grams is now considered a civil infraction. This means you are cited a ticket and a fine is paid. There is no jail time involved for a first time offender and is not considered a criminal offense. One ounce of marijuana weighs 28.35 grams.
If the possession incident happened on school grounds, that is considered a criminal misdemeanor offense and can carry a $500 fine and up to 10 days’ jail time. As long as the marijuana is dried and not concentrated, not on school grounds and not accompanied with any devices that could cause suspicion of intent to sell, a possession charge is considered a non-criminal infraction with a fine of $100.
Possession- Less than 28.5 grams for minor under 18:
If someone under the age of 18 is cited for any possession, regardless of the amount, they could face criminal charges. Possession by a minor is considered a misdemeanor and is punishable by $250 in fines and up to 10 days in a detention center. Any person under the age of 21 convicted of any drug or alcohol related offense can also be faced with a 12-month driver’s license suspension.
The court can also postpone that person’s eligibility to obtain a driver’s license for one year if the person does not have a license. The court may also place restrictions on driving privileges even if they have not completely suspended the license. These additional penalties can be added whether or not the marijuana related offense had anything to do with driving a vehicle.
Possession- More than 28.5 Grams
Possession with more than 28.5 grams is a misdemeanor offense. Penalties can be up to $500 in fines and up to 6 months’ jail time. If this possession charge is accompanied by other factors, the criminal penalties can be more severe. These factors include being on school grounds, intent to distribute, having concentrated marijuana and driving under the influence.
Possession- With Intent to Distribute
Possession with intent to sell can be often hard to prove, with the help of a skilled attorney. There are a couple of red flags that the court looks for when charging for this crime:
-Bags and scales or packaging materials
-Marijuana divided up in more than one place
-An excess of cash
-Large quantities of marijuana
-Address books or accounting materials
The state of California takes distribution and intent to distribute very seriously. If convicted, possible penalties for intent to distribute include 16 months to 3 years in jail. Possible fines can vary per county.
Hash or Marijuana Concentrates
Hash, also known as concentrated marijuana, is more potent and treated differently than dried marijuana. These products are commonly known as hash, oil, dabs, wax or extracts. Because these concentrated forms of marijuana are more potent, the State of California will impose harsher punishments on offenders with this type of marijuana. Manufacturing charges will vary depending on what method was used during the manufacturing process.
-Possession: Possession of this type of marijuana can come with a $500 fine and up to a year of jail time.
-Unauthorized manufacture of hash or concentrates: If the manufacturing process did not involve chemical synthesis (such as screens or presses), the fines are $500 with jail time ranging from 16 months to three years.
– Chemical manufacture of hash concentrates: If the manufacture of the concentrated marijuana involved a process of extracting chemicals, the penalties will be much more severe. Fines can be up to $50,000 and jail time can range from 3-7 years.
Gift, Sale and Distribution
The unauthorized sale or distribution of marijuana is taken very seriously by the State of California. Consequences can depend on the circumstances surrounding the sale or distribution and anything involving a minor will be prosecuted more aggressively.
– Gift less than 28.5 grams: A gift or transportation of 28.5 grams or less is a considered a misdemeanor offense with a fine up to $100. This is the only time that a transfer of marijuana is not considered a felony (as long as it does not include a minor).
– Sale and distribution: Illegal sale or distribution in any amount is considered a felony. This includes importing or exporting, transporting for sale or distribution. Fines will vary here but jail time will be anywhere between 2 to 4 years.
– Adult sale to a minor: Any adult (over 18 years of age) who attempts to deliver marijuana with or without payment to minors 14-17 years old can face felony charges and 3-5 years in jail. Any adult who attempts to deliver marijuana with or without payment to minors 14 and younger can face felony charges and 3-7 years in jail.
Cultivation for Non-Medical Use
Cultivation of marijuana is legal for medical patients and their caregivers. Unless these specifics are met, it is illegal to plant, harvest, cultivate, process or dry marijuana. The state of California considers cultivation of marijuana a felony offense with 16 months- 3 years in jail.
Sale, Delivery, Possession of Manufacture with Intent Paraphernalia
Businesses can sell paraphernalia legally but there are regulations involved to ensure children don’t acquire it. Businesses must have a separate display area where no one under the age of 18 may enter. These businesses can have business licenses revoked for not following these regulations.
Since business owners who sell paraphernalia are subject to regulation, those who are not subject to these regulations may not sell, deliver or manufacture these products. This is considered a misdemeanor criminal offense with fines up to $500 and anywhere from 15 days to 6 months in jail.
Marijuana Related Driving Offenses
Driving with Marijuana: Driving a vehicle with marijuana in the car could have similar penalties to a small possession charge. It is considered an infraction of the law and no criminal charges will be filed as long as the amount is under 28.5 grams. The fine for the infraction is $100.
Driving Under the Influence of Marijuana
Driving under the influence of marijuana creates some controversy for lawmakers and enforcement. Blood tests cannot prove when or how long it has been since the drug was consumed. Because of this, it becomes very difficult to prove. If law enforcement suspects you to be under the influence of marijuana, they will call a DRE (drug recognition evaluator) to have an inspection done.
These evaluators are looking for signs of impairment such as dilated pupils, elevated blood pressure, dry mouth, relaxed state of mind and memory impairment. Driving under the influence of marijuana is considered a misdemeanor criminal offense with up to a year in jail and up to $2,000 in fines. Other likely consequences are community service, a DUI school, and possible 6-month suspension of your driver’s license.
Until more scientific ways of proving that someone is driving under the influence of marijuana are available, the best course of action is to be courteous and quiet to law enforcement. Do not admit guilt, and hire a good criminal defense attorney once you have been assigned a court date.
Alternative Penalties for Marijuana Offenses
Some marijuana related offenses can have a lightened sentence if offenders successfully complete a treatment program or diversion program ordered by the court. If the charge is a first time offense, an experienced criminal defense attorney may help you avoid jail time through drug treatment, drug court (counseling and drug testing through the court), and deferred sentencing (plead guilty and the charge is dismissed later if other charges are avoided for 6-12 months).
For more information on laws related to medical marijuana or possible criminal charges due to marijuana, contact us today. If you are someone you know is facing criminal charges, you should make sure you have the best people on your side. Our firm has had experience with the laws related to marijuana since 1984. Robert M. Helfend has the skills and experience to evaluate and aggressively defend your case. I work tirelessly to ensure your freedom.
*The information contained in this document is not intended and should not be taken, as legal advice on any set of circumstances. The use of this information does not create an attorney- client relationship between you and Robert M. Helfend.