Marijuana Laws in San Joaquin County
California votes first legalized medical marijuana in 1996. California voters, in 2016, passed Proposition 64, which legalized the use of recreational marijuana in California for anyone age 21 or older, and legalized the sale and cultivation of marijuana. However, strict guidelines still regulate the use of marijuana and the marijuana industry.
Individuals who use, sell, or cultivate marijuana outside of those guidelines risk criminal prosecution and associated penalties. So that you don’t run afoul of those rules, here is a brief overview of the current marijuana laws in California.
Possession - Health & Safety Code 11357
Health and Safety Code 11357 HS is the California law that sets the guidelines for personal possession of marijuana.
Possession for personal use of not more than 28.5 grams of marijuana (a little over an ounce) is legal in California as of November 2016, for people age 21 and older. So is possession of up to 4 grams of concentrated cannabis (hashish).
The following, however, are crimes (either misdemeanors or 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.
The chart below outlines the punishment for various marijuana possession crimes:
|Specific offense:||Degree:||Penalties (listed fines are increased by additional fees):|
|Possession of marijuana or concentrated cannabis by person under 21.||Infraction||Drug counseling and community service if defendant under 18 or fine of up to $100 if defendant 18 or over.|
|Possession of more than 28.5 grams of marijuana or more than 4 grams of concentrated cannabis - 18 or older.||Misdemeanor||Up to 6 months in county jail and up to $500 fine.|
|Possession of more than 28.5 grams of marijuana or more than 4 grams of concentrated cannabis - under 18.||Infraction||Drug counseling and community service.|
|Possession of any amount of marijuana or concentrated cannabis at a K-12 school - 18 or older.||Misdemeanor||Up to $250 fine for first offense.|
|Possession of any amount of marijuana or concentrated cannabis at a K-12 school - under 18.||Infraction||Drug counseling and community service.|
Cultivation - Health & Safety Code 11358
California Health and Safety Code 11358 HS allows most people who are 21 and over to cultivate up to six marijuana plants.
People under 21 who grow any amount marijuana, though, are guilty of an infraction. People under 18 who cultivate marijuana illegally must attend drug counseling and perform community service. People 18 and over, but under 21, may be fined as much as $100, but base fine amounts are greatly increased by fees.
Cultivating more than six marijuana plants is 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 months in county jail and/or a fine of up to $500.
Cultivating more than 6 marijuana plants can be charged as a felony for the following defendants:
- People with serious violent felonies on their record;
- Registered sex offenders;
- Defendants who have two or more prior convictions for cultivating more than six marijuana plants; and
- Defendants who violate certain California environmental laws in their marijuana cultivation activities.
Possession with Intent to Sell - Health & Safety Code 11360
Proposition 64 legalized the sale of marijuana--but only for businesses that obtain and operate in accordance with a state license. Additionally, San Joaquin County requires local permits.
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 - possession of marijuana for sale law. For most adult defendants, HS 11359 is a misdemeanor, carrying the following penalties:
- Up to six months in county jail, and/or
- A fine of up to five hundred dollars.
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 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 called “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.
Sale without a License - Health & 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 months in county jail and/or a fine of up to one thousand dollars. 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 ave 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, three, or four 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.
Sale to a Minor - Health & 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:
- give away,
- prepare for sale, or
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.
Concentrated Cannabis (Hashish)
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 4 grams for personal use.
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. Now that recreational marijuana is legal, California's medical marijuana laws and system may become irrelevant.
However, until January 1, 2018 (the latest date on which California's government can begin to issue licenses for recreational marijuana sales), users of medical marijuana will need to continue to obtain marijuana through the existing medical marijuana legal system.
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:
- 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.
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.”
Failure to obtain the proper licenses and permits may subject persons operating a marijuana dispensary to many of the marijuana laws listed already.
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.
Federal Marijuana Law
Title 21 of the United States Code is the federal “Controlled Substances Act” (“CSA”). Under the CSA, marijuana is 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.
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 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, federal (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.
The U.S. Department of Housing and Urban Development (“HUD”) allows local housing authorities to set their own policies on marijuana use.
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.
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