Although marijuana is lawful for recreational and medical use, it is still a controlled substance that can put you in trouble with the law. If you are under arrest for a marijuana-related offense, you must consult an attorney as soon as possible because laws surrounding these offenses are complex and constantly changing.
Experienced attorneys at Darwish Law will ensure that you have the best legal representation in court to counter the alleged marijuana-related charge you are up against. The issue of marijuana, also commonly known as pot, cannabis, or weed, is controversial, and many people end up behind bars because they are not aware of what is lawful and what is not.
This article will enlighten you on various marijuana laws to help you understand your rights if you are under arrest for any marijuana-related offense in Santa Ana, CA.
Marijuana Laws at a Glance
Initially, marijuana was legal for medical use only following the legalization of medical marijuana in 1996 under the Compassionate Use Act. However, following the enactment of Proposition 47 (Prop 47) in 2016, people can now legally cultivate and possess specific amounts of non-medical marijuana for recreational use under particular conditions.
According to Prop 47, if you are 21 years and above, you can legally possess, purchase or consume a maximum of 28.5 grams of dried cannabis or up to 8 grams of concentrated cannabis. Under this statute, it is also lawful to grow a maximum of six marijuana plants. However, you have to do it in an establishment legally licensed for marijuana use or in your private premises.
That means if you are a tenant, you must have consent from your landlord to smoke or grow any marijuana plants in your apartment.
An Overview of Common Marijuana Laws
Although the enactment of Prop 47 legalized non-medical possession, purchase, and use of marijuana, here, it does not eradicate other laws relating to this drug. Instead, the enactment of Prop 47 has only come with some necessary changes on how law enforcement officers should treat marijuana-related offenses, especially those involving simple possession and sale.
To that end, elaborated below is an overview of common marijuana laws that people run into trouble with often and penalties you would face upon conviction for violating any of them:
Possession of Marijuana for Personal Use (HS 11357)
According to Health and Safety Code Section 11357, possession of marijuana can attract misdemeanor or infraction charges, depending on the amount you had, your age, and other circumstances surrounding your specific case.
Generally, an arrest for illegal possession of marijuana can make you subject to the following charges and penalties:
Possession of Dried Marijuana Weighing Less than 28.5 Grams (HS 11357(b))
As mentioned above, purchasing, consuming, or possessing marijuana not exceeding 28.5 grams is legal if you are 21 and over. Therefore, if you are below 21 years, possession of not more than 28.5 grams of marijuana will attract some charges under HS 11357(b). Just like other offenses, an arrest or detainment by the police for alleged possession of less than an ounce of dried marijuana as someone under 21 is not the same as a conviction.
To obtain a conviction against you, the prosecutor must use his/her evidence against you to prove the following elements of the crime beyond a reasonable doubt:
- You had non-medical marijuana on your person, in your vehicle, or in your apartment
- You were aware of its presence
- You were aware the substance in question was a controlled substance/illegal
- The substance in question was marijuana
- The amount of the marijuana you had in possession was less than an ounce
Under HS 11357, a conviction for possession of less than an ounce (less than 28.5 grams) of non-medical marijuana as a person under 21 is an infraction, carrying the following potential consequences:
- A fine not exceeding $100 (18 to 20 years old)
- Community services or mandatory drug counseling or both and a civil fine not exceeding $100
Remember, even if you are below 21 years, you might be subject to possession with intent to sell even if the amount you had in possession during the time of the arrest was less than an ounce. Below are examples of pieces of evidence that can convince the prosecutor that you had the intent to sell the alleged marijuana you had within your person, vehicle, or apartment:
Generally, juvenile offenses or delinquent acts are complex to a layman. If your son or daughter is in custody for alleged possession of non-medical marijuana, you should discuss this issue with an experienced defense attorney without delay for the best possible outcome.
Possession of Marijuana Weighing More than 28.5 Grams (HS 11357(c))
Even if you are over 21 years of age, possession of more than an ounce (more than 28.5 grams) of dried marijuana will attract some charges and penalties under the law. For the sake of HS 11357, the term “possession” means the alleged drug substance was in your control and within your reach, for example, on your person, in your apartment, or in your house.
Possession of dried marijuana weighing more than 28.5 grams or more than 8 grams of concentrated cannabis is chargeable and punishable as a misdemeanor or an infraction, depending on your age. Just like HS 11357(b) violation, the prosecutor must prove the elements of the crime listed above to convict you for this charge under HS 11357(c).
However, he/she must prove to the court beyond a reasonable doubt, the specific amount of marijuana you had in your possession was more than the authorized limit (28.5 grams) for that to happen. Typically, a conviction for possession of more than an ounce of dried marijuana will attract the following potential penalties:
If you are 18 and over, a conviction for HS 11357(c) violation will attract the following misdemeanor penalties:
- An incarceration term of up to six (6) months in the county jail
- A maximum of $500 fine
On the other hand, if you are under 18 years of age, a conviction in the juvenile court for a violation of HS 11357(c) will make you subject to the potential penalties listed below:
- Mandatory drug counseling
- Community service
Note, if aggravating factors exist within the context of your case, whether as a minor or a person over 18, you could be subject to more severe penalties. These aggravating factors include:
- Possession around school grounds
- Possession of concentrated cannabis
Possession of Concentrated Cannabis HS 11357(a)
According to HS 11357(a), possession of concentrated cannabis, also commonly known as hashish or hash, is illegal as well. For the sake of this law, concentrated cannabis is typically the separated resin or oil that you extract from a marijuana plant.
Possession of hash is a severe offense in the eyes of the law because this substance, “resin or oil,” contains a high amount of tetrahydrocannabinol (THC), which is the psychoactive ingredient in marijuana.
According to HS 11357(a), simple possession of hash is a misdemeanor if you are over 18 years old, and a conviction will attract a fine amounting to up to $500 and an incarceration term in the county jail for not more than six months. However, if you are below 18 years, a conviction for HS 11357(a) violation will attract infraction penalties similar to those listed above for a conviction under HS 11357(c).
Cultivation of Marijuana (HS 11358)
The growing or cultivation of marijuana is unlawful, except under particular conditions that allow it. Typically, these exceptions permitting the cultivation of marijuana come from the following statutes:
- Compassionate Use Act –The Compassionate Use Act went into effect in 1996 following the enactment of Proposition (Prop) 215, which allows patients and medical caregivers to cultivate marijuana for medical use under particular conditions
- Adult Use of Marijuana Act – Also commonly known as Prop 64, is a voter initiative or passage to decriminalize adult use of marijuana for recreational purposes.
According to Prop 64, if you are 21 years old or above, you can possess and cultivate/grow a maximum of six marijuana plants in an indoor environment or locked space, away from public view or access by a minor (under 18). For the sake of the statute, even if you are a couple who is sharing a residence, cultivating or growing more than six marijuana plants will still be illegal.
That means each of you cannot legally grow a maximum of six marijuana plants in the same residence or house as an adult living alone would, according to Prop 64. According to HS 11358, “cultivate” means to grow, harvest, sundry, or process marijuana or any part of the plant.
Cultivating marijuana without abiding by the required legal regulations on medical and recreational use is typically a misdemeanor offense for adults and an infraction for those under 21 years of age. A conviction for HS 11358 violation as a minor will make you subject to a mandatory drug counseling sessions and community service. However, if you are over 18 years and below 21 years, you might also be subject to an additional maximum fine of $100 upon conviction for HS 11358 violation.
For an adult over 21 years, a conviction for the unlawful cultivation of marijuana will make you subject to misdemeanor or felony penalties, depending on the specific facts of your case. To that end, a conviction for misdemeanor HS 11358 violation will come with the following potential penalties:
- Fine not exceeding $500
- Detention in the county jail for not more than six (6) months
A charge for HS 11358 violation can attract felony penalties upon conviction if the following aggravating facts are true beyond a reasonable doubt:
- You are a registered sex offender
- You have more than two past convictions or strikes for unlawful cultivation of marijuana (growing more than six marijuana plants)
- Your criminal record contains a conviction for a severe felony
In this situation, the penalties you would face upon conviction are severe compared to misdemeanor penalties for the same offense. Below are potential penalties you could be subject to if you are guilty of unlawful cultivation of marijuana as a felony under HS 11358:
- $10,000 maximum fine
- Custody in the county jail for a maximum of three (3) years
Possession with Intent to Sell (HS 11359)
Despite the enactment of Prop 64 to decriminalize marijuana, you might run into trouble with the law when you possess or buy marijuana exceeding the legal or allowable quantity for personal use, meaning you had the intent to sell or distribute it. Under the law, there are only two allowable sources, retailers, or outlets of legalized marijuana, including:
- Medical marijuana dispensaries
- Businesses with legal authority or licenses to sell recreational marijuana for any individual above the age of 21
Therefore, it will be illegal for you to sell medical or recreational marijuana to people if you don’t fall in any of the above two categories. To turn this alleged charge into a conviction, the prosecutor must prove the following elements of the crime beyond a reasonable doubt:
- The amount or quantity of marijuana you had in possession was useable
- You were aware the marijuana was in your possession
- You were aware marijuana is an unlawful or controlled substance
- You had the motive or intent to sell it unlawfully without a legal license to do so
Unless the prosecutor can read your mind, proving to the court that you had the mental intent to sell the alleged marijuana you had in your possession is a challenging task. Instead, he/she will rely on external signs and pieces of circumstantial evidence surrounding the alleged case to prove to the court that you had the criminal intent to sell the drug unlawfully, for example:
- The amount of dried or concentrated marijuana you had in your possession was more than what is lawful for personal use
- You had a digital scale and a large amount of available cash on your person, in your vehicle, or at your home
- The packaging of the marijuana was in small baggies or containers
- You have a conviction record for selling unlawful or controlled substances
HS 11359 violation is typically a misdemeanor offense, but it can turn out to be a felony under particular circumstances. A misdemeanor conviction for HS 11359 violation is punishable by a fine of up to $500 and an imprisonment term in the county jail for not more than six months. The following factors or circumstances will make the alleged HS 11359 violation a felony offense:
- You have a prior conviction record for committing violent or severe felony offenses, including rape or murder
- The useable quantity of marijuana you had in possession was in connection to the attempted sale or sale to a person under 18, knowingly
- You have two or more past misdemeanor convictions for HS 11359 violations
If you are guilty of HS 11359 violation as a felony, your potential sentence will include:
- $10,000 maximum fine
- 16 months to 3 years imprisonment term in the country jail
Possession of an Open Marijuana Pot or Container While Driving (Vehicle Code 23222)
According to Vehicle Code (VC) 23222, driving a vehicle while carrying an open marijuana or alcohol container is unlawful. Here are a few instances that can attract charges under this statute:
- Having unsealed marijuana container in your back seat after buying it from a licensed dispensary
- Having an ounce of dried marijuana in your jacket pocket while driving a motor vehicle on a highway
Driving a vehicle with an open container of marijuana is typically an infraction offense that attracts a maximum fine of $100 upon conviction for VC 23222 violation.
Defending a Marijuana-Related Charge
There are various viable legal defenses a skilled defense attorney can apply if you are under arrest for a marijuana-related charge. Depending on the unique facts and circumstances of your charge, your attorney can counter the alleged marijuana-related charge against you by raising the following common defenses:
- There was a police misconduct issue during your arrest, for example, illegal search and seizure
- The marijuana you had in possession was medicinal
- The alleged substance was not marijuana
- You did not have the criminal intent or motive to sell the alleged quantity of marijuana you had within your possession
If your case involves simple possession of marijuana, it might be possible to avoid an incarceration term by requesting any of the following diversion programs:
- Proposition 36 – Prop 36 is typically a criminal sentencing law that allows you to participate in a mandatory drug treatment program for a maximum of one year instead of imprisonment
- Deferred Entry of Judgment (DEJ) – in this type of diversion program, you will have to plead guilty to the alleged charges and enroll in a court-approved drug treatment program for six months. After an additional 12 months of remaining arrest-free or out of police custody, the court will dismiss your case.
Being under arrest for a marijuana-related offense is a stressful and tricky experience. However, with a dedicated and skilled attorney in your corner, you might be able to counter the alleged marijuana-related offense you are up against for the best possible verdict or outcome.
Find a Santa Ana Criminal Defense Attorney Near Me
Marijuana-related offenses are tricky and challenging to navigate, but that is what skilled attorneys at Darwish Law do best due to their significant experience with these cases. We invite you to call us at 714-887-4810 if you are under arrest for a marijuana-related offense in Santa Ana, California,
Our attorneys will offer you the dedicated and aggressive legal representation you deserve on the alleged marijuana-related charge to achieve a favorable outcome.