Since marijuana use outside medicinal purposes was legalized, California has seen a surge of users. Common misconceptions are that the legalization of recreational use means everyone can possess and use marijuana freely at a place of their choosing. Health and Safety Code 11357 restricts the use of marijuana to adult users, possession of the substance in specific quantities, and marijuana use in certain areas. A violation of HSC 11357 will result in criminal prosecution. It is crucial to familiarize yourself with marijuana laws.
Should you be arrested and face prosecution for possessing marijuana in contravention of HSC 11357, hiring an attorney conversant with marijuana regulation at the state and federal levels is crucial. At California Criminal Lawyer Group, we educate and provide legal aid to individuals facing prosecution for possessing marijuana in Anaheim. Contact our team today for reliable and professional legal assistance.
Illegal Possession of Marijuana Under the Law
Health and Safety Code 11357 makes it an offense to possess marijuana in the following circumstances.
- If you are an individual below 21 years of age and possess any quantity of marijuana
- Possession of more than 28.5 grams of dried marijuana if you are an adult over 21 years of age or up to 8 grams of concentrated hashish
- Possessed marijuana at a K-12 school, regardless of your age
Prosecutors must establish criminal culpability by proving:
- You possessed marijuana
- You reasonably knew or should have known you possessed marijuana
- You possessed a usable quantity
Possession, knowledge, and usable quantity are foundational in determining your guilt. Let us look at each of them in detail.
Possession can be constructive, actual, or joint. HSC 11357 prohibits all three.
You have actual possession of marijuana when you exercise physical control of it. The substance was on your person, or it was in a bag or a carry-on.
Note: Police officers do not have to find the substance on your person at the time of your arrest for you to be criminally culpable. As long as you had control over the marijuana shortly before the arrest, the control meets the possession threshold. For example, an officer witnessing you ingest marijuana before your arrest.
You are in constructive possession when the drug is not found on your person but in a location you exercise control over. This can be anywhere from your closet, inside your car, to a shelf in your kitchen. Further, prosecutors must prove you were the only person who exercised control in the location where the drugs were found. Otherwise, it can be arguable another individual who accessed the same area could have been the likely culprit. A failure on the prosecution’s part to prove you are the only one who accesses the location is an opportunity for your defense attorney to exploit as a defense strategy.
Should prosecutors fail to prove constructive possession, they will resort to joint possession. You are in joint possession of marijuana when you and another individual share actual or constructive possession of the drug. For example, if marijuana is found in a closet you share with your roommate, in this case, the prosecution will seek a conviction based on joint possession.
Prosecutors should prove that you knew or were aware of the drug’s presence and nature as a hallucinogen. It, therefore, follows that if you were not aware of the drug’s presence nor were you aware of its nature as a hallucinogen or a controlled substance, you are not in violation of HSC 11357.
You are only guilty of illegal possession of marijuana if the prosecution proves that the substance quantity was sufficient to constitute a usable amount. Usable here means a quantity adequate to have an effect. Therefore, possessing debris, traces, or residue is insufficient to warrant an illegal possession charge.
Legal Provisions on Possession of Marijuana
It bears emphasizing that the legalization of marijuana does not mean you cannot be penalized for possessing marijuana or concentrated cannabis.
Here is a look at the provisions under HSC 11357 and the likely penalties you will receive for violating HSC 11357.
Marijuana Possession by Individuals Under 21 Years
Possession of marijuana or concentrated cannabis (hashish) if you are below 21 years of age is an infraction. You will be released after paying a fine of up to $100 and be required to attend counseling and community service.
For purposes of HSC 11357, anyone under 21 and above 18 years is an adult. Legally, minors, individuals below 18 years, will be punished. The adult who furnished the minor with the drug is also criminally culpable. Prosecutors will seek to convict an adult:
- Who offers, gives, or sells marijuana to a minor
- Induces a minor to use marijuana, or
- Uses or employs a juvenile to sell, transport, or give away marijuana
All three are violations of HSC 11361.
Quantity of Marijuana
You are guilty of a misdemeanor offense if prosecutors prove you possessed more than 28.5 grams of marijuana or an amount exceeding 8 grams of hashish, and at the time of the arrest, you were 18 years or over. A conviction will result in a fine not exceeding $500 and up to 6 months in jail.
Defendants under 18 years who possess a maximum of 28.5 grams of marijuana or concentrated cannabis exceeding 8 grams will be mandated to attend up to 10 hours of community service and four hours of drug counseling for the infraction.
Defendants under 18 with prior convictions will spend up to six hours in a court-mandated drug education program or counseling and up to twenty hours of community service.
Possession of Marijuana on K-12 School Grounds
Defendants above 18 years but under 21 years are liable to misdemeanor penalties if found guilty of possession of marijuana or hashish on a K-12 school ground. The defendant will part with $250 in fines for a first offense.
If the defendant was under 18 when he/she was arrested for marijuana or hashish possession on a K-12 school ground, he/she will be required to attend a court-mandated drug counseling program and serve community hours for the infraction.
Note: If you have a criminal record for a serious felony like a sexually violent crime or murder, a guilty verdict for possession of marijuana will result in felony penalties which include 16 months, two, or three years in prison.
The courts can opt for a drug diversion program as an alternative sentence to your possession of marijuana conviction. A drug diversion program allows defendants charged with nonviolent drug offenses like possession of marijuana to seek drug treatment or rehabilitation as opposed to serving time behind bars. You will have your charges dismissed after completing the program.
Concentrated cannabis, hash, or hashish is the resin obtained from a marijuana plant. It is also referred to as hash oil, honey oil, marijuana resin, rosin, or wax.
Hashish contains THC, tetrahydrocannabinol, marijuana’s psychoactive ingredient.
Hashish is packed into bricks for more effortless transportation. Most individuals arrested with hashish have irregular chunks, liquid hashish, or semisolid “goo.”
Individuals entitled to medical marijuana use could legally possess concentrated cannabis for personal use. These individuals are also allowed to produce it for as long as he/she does not use chemical solvents like butane.
Individuals legally allowed to possess marijuana for medicinal purposes are not subject to the 8-gram limit recreational users should adhere to.
Federal Prosecution of Possession of Marijuana
Obama’s administration had adopted a hands-off policy when it came to prosecuting possession of marijuana at the federal level. The guideline was that federal prosecutors would not interfere with individuals who comply with state marijuana laws. However, Jeff Sessions rescinded the policy during his term as the attorney general. This meant that the federal prosecutors could exercise their discretion to prosecute individuals in possession of marijuana at the federal level as they see fit since marijuana possession is still illegal under federal law.
Cultivation of Marijuana and the Possession of Marijuana With the Intent to Sell
Proposition 64 operationalized marijuana use, sale, and distribution. Legalization of the substance meant that only licensed businesses were authorized to sell marijuana as well as cultivate marijuana. You violate the law by participating in the black market selling, transporting, or cultivation of marijuana. Let us look at each offense in detail.
HSC 11358 makes it a crime for adults aged between 21 and over to cultivate more than six cannabis plants for recreational use.
Any individual between 18 and 20 who cultivates marijuana commits an infraction punishable by a fine not exceeding $100.
If an individual aged above 21 years or older plants more than six hashish plants, he/she commits a misdemeanor violation. If found guilty, he/she will serve a six-month jail sentence and part with $500 in fines.
A defendant is likely to face felony charges if he/she cultivated more than six plants and:
- Is a registered sex offender
- Has a prior conviction for a serious violent felony
- Has two prior convictions for HSC 11358 violations, and
- Violates specific environmental laws during their cultivation activities
Convictions on felony charges are punishable by a jail sentence of up to three years, a fine not exceeding $10,000, or both.
Possession of Marijuana For Sale
Possession of marijuana for sale is a crime under HSC 11359. However, the law provides the following exceptions:
- Marijuana sale to adults 21 years and over by a business licensed to sell recreational marijuana, and
- Sale of medical marijuana as per state laws.
HSC 11359 are misdemeanor offenses punishable by six months in jail, a fine not exceeding $500, or both.
HSC 11359 becomes a felony when you possess marijuana with the intention to sell without a license if you have aggravating circumstances, which include:
- Being a marijuana repeat offender,
- If you have a prior conviction for a serious violent or sex crime, or
- Possession with the intent to sell marijuana to minors,
convictions result in sixteen months, two or three years in jail.
Driving in Possession of Marijuana
Vehicle Code 23222 prohibits drivers from operating vehicles while in possession of an open container of alcohol or marijuana. The law requires that alcohol or marijuana containers remain closed while operating a car.
Since the focus is on marijuana, we will zero in on VC 23222, which addresses possession of marijuana while driving.
It is a crime to do the following:
- Drive a vehicle on the highway — Highway, in this case, refers to a freeway or any other public road or street, and
- Drive while possessing marijuana in an open container or not in a container.
Prosecutors must prove the two elements above to secure a guilty verdict from the jury.
Note: You are not guilty of the offense if you are legally authorized to have marijuana.
Here are a few actions that meet VC 23222’s definition of the offense.
- Driving with an open box containing marijuana in the co-drivers seat
- Having an ounce of the drug in your pocket while driving
- Breaking the seal of a marijuana container after purchasing it from a pharmacy and throwing it in the back seat
Marijuana use or possession under VC 23222 is restricted to private areas, including your home, compound, or driveway.
When you use your vehicle to access public areas, including while on the road, you violate VC 23222.
Luckily VC 23222 violations are infractions. A violation is punishable by a $100 fine.
Fighting Possession of Marijuana Charges
Recall that the foundational elements in possession of marijuana cases are the quantity, possession, and the knowledge that you had the drug. That is why most defenses address these key areas to create a reasonable doubt in the case.
Prosecutors bear the burden of proof. You can only be found guilty if the prosecution proves its case beyond a reasonable doubt.
It is best to capitalize on an attorney’s vast experience in criminal defense to fight the charges. Your attorney will assess your case during the initial consultation and formulate a winning strategy for your case.
You Did Not Possess The Marijuana
HSC 11357 requires possession for you to be found guilty. Therefore, you are not guilty if you do not possess the substance.
This defense is ideal if you factually did not possess marijuana at the time of the arrest. Your attorney will use this defense if the marijuana was discovered close to you and was mistaken to be yours.
For example, someone could throw their marijuana joint on seeing the police officer approach the bus stop. When the officers arrive at the terminal, they see the marijuana joint and claim it is yours since you are the only one present at the terminus.
This defense can also be used in cases where you borrowed a friend’s car or clothing that had marijuana in it, and you did not know. In both cases, while the initial conclusion could be you were in possession, by establishing you did not own the car and had just borrowed it or borrowed the clothes, your attorney will assert you did not possess the marijuana.
You Did Not Know You Had The Marijuana
It must be evident you knew you had the drug. Otherwise, you are not in violation of HSC 11357. Possession of the drug is insufficient to secure your conviction. It is upon the prosecutor to prove you knew that you possessed the drug.
An acquittal is possible should the prosecution fail to prove you possessed the marijuana.
Police Found Marijuana During An Unlawful Search And Seizure
The Fourth Amendment protects you from unreasonable police intrusions, for example, in the case of unlawful search and seizures. Police officers can only search your property if they have a valid warrant from a judge or if the search falls within several exceptions recognized by the courts at the state and federal levels.
Some of the exceptions include:
- Searches and seizures are conducted after you voluntarily consent
- Inspection searches like searches carried out at international borders
- Incidental searches or seizures — These are conducted following a lawful arrest while police officers are looking for weapons that could be used against them. Additionally, searches and seizures are also carried out to obtain evidence that could otherwise be destroyed.
- Searches of apparent incriminating items in plain view while officers conduct an otherwise lawful search
- Searches in situations where a person has no reasonable expectation of privacy
- Searches and seizures are necessary to prevent physical harm, locate a fleeing suspect, or prevent property damage.
- Searches of cars where officers have probable cause to believe the vehicle contains evidence of a crime
In drug cases, law enforcement officers violate Fourth Amendment rights when they:
- Execute searches without valid search warrants
- Initiate an illegal stop — A lack of probable cause to initiate the stop
- Search through an area not covered by the search warrant
If you are a victim of an illegal search and seizure, your attorney will file a motion to suppress the evidence obtained in the search per PC 1538.5. The motion petitions the court to exclude the evidence obtained from the unlawful search and seizure.
If successful, your case could be dismissed or your charges reduced.
You Possessed Medical Marijuana
HSC 11362.5, California’s Compassionate Use Act, authorizes medical marijuana users to transport and possess marijuana for personal use. Additionally, the same law allows caregivers to possess and transport marijuana to medical marijuana patients.
Marijuana patients, according to the Compassionate Use Act, are individuals with medical conditions, namely AIDS, epilepsy, cancer, chronic pain, migraines, anorexia and:
- are approved or recommended to use marijuana by a licensed physician, and
- marijuana is solely for medical treatment as prescribed.
HSC 11362.5 defines a caregiver as an individual who:
- Has been designated as a caregiver by the legal, medical marijuana user
- Is consistently responsible for the user’s health, safety, and housing
- Provides care, independent of the assistance he/she gives to the marijuana user
- Begun taking care of the user at or before the time the caregiver assumed responsibility for assisting with the medical marijuana use
This defense is effective if the quantity of marijuana found in your possession is reasonable with regard to the prescription as issued by a certified medical physician. Therefore, this defense is not an option should you be found in possession of marijuana that is more than necessary for you or your patient’s medical needs.
Other than the quantity of marijuana, law enforcement officers also rely on the presence of marijuana paraphernalia as evidence that an individual possessed the marijuana for sale. Paraphernalia indicative of the sale of marijuana include:
- Rolling papers — Used to fold up marijuana to roll to enable users to smoke.
- Grinders — Small metal tins that, as the name suggests, grind the marijuana in consumable portions.
- Baggies — Used to carry rolled-up marijuana or hashish in small, easy-to-transport quantities.
Therefore, without additional evidence to support the charge of possessing the marijuana for sale, the prosecution will have difficulty convincing the jury of your guilt.
On the other hand, your attorney will capitalize on the lack of sufficient evidence to prove the case beyond a reasonable doubt using this defense.
Find a Santa Ana Criminal Defense Attorney Near Me
Criminal cases result in life-altering consequences. Possession of marijuana is no different. A conviction could adversely impact the socio-economic aspects of your life, thus compromising your ability to secure employment, housing, credit, or a professional license. A conviction is also grounds to lose custody of your children in a custody battle. You, therefore, need legal representation to improve your chances of a favorable legal outcome.
Contacting the California Criminal Lawyer Group is the right first step to fighting the charges. Our years of experience place us as the ideal assistance you need for your case. We bring on board years of experience and understanding of Marijuana laws. Therefore, contact us at 714-766-0965 for a free, confidential consultation should you or a loved one face possession of marijuana charges in Anaheim.