Marijuana is defined as controlled substance under the Federal Controlled Substance Act(CSA). Under schedule 1, of the statute classification, Marijuana is described as Hallucinogenic Drug, which means it has potential risk of abuse and is not accepted for medical purposes.
So, it is important to know that technically, violation of federal law occurs even when complying with California state law. Generally, federal prosecution will occur only when Marijuana is used or transported in public airports, federal buildings, post offices, national parks and federal courthouses.
IMMIGRATION LAW AND MARIJUANA
Because Immigration is federal subject matter, non-U.S. citizens have to be careful when dealing with situations involving the possession or selling of marijuana.
Even a legal alien, i.e. a lawful permanent resident can be deported if charged with an aggravated felony. Possession of 30 grams or less of marijuana for personal use is a non-deportable conviction, as an exception for grounds of deportability.
Individuals who are illegal aliens may be deported even if there are charged with a misdemeanor because they are deportable regardless of the drug related charges.
Also, it is important to note that drug abusers are deportable even without conviction (admissions of the abuse or medical report is enough to be accepted as evidence)
CALIFORNIA STATE LAW
Under the California State Law, after adoption of Proposition 64 in 2016, adults 21 and over may purchase, possess, and consume up to 1 oz. (28.5 grams) of marijuana or 4 grams of concentrated cannabis in their private residence or in an establishment licensed for marijuana consumption. Adults also are allowed to grow up to six marijuana plants and keep the herb that is produced, as long as it is done in a secure space not visible to the public.
The medical use of Marijuana in California was already permitted since 1996 through the Compassionate Use Act, under which an individual can qualify for medical use if a physician recommends or approves of their medical use of marijuana. Typically, this means that the doctor will give a written recommendation to the patient as proof of the patient’s status that entitles them to use, possess, and cultivate cannabis.
Use, sell or cultivation outside the rules may trigger criminal penalties. If used over the ounces/grams permitted by law or used in areas not permitted by law, the individual may be charged with violation of the Health and Safety Code and incur criminal penalties.
There are different situations and therefore different charges for state marijuana violations, we describe them bellow:
Marijuana Possession- Health & Safety Code § 11357
Possession for personal use of not more than 28.5 grams of marijuana (a bit more than 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).
However, possessing more than what is permitted or in unpermitted areas or possession of any amount while under 21 may result in criminal penalties.
- Possession of marijuana by anyone under 21(Infraction punishable with community service for people under 18 and fines of up to $100.00 for people over 18 years old);
- Possession of more than 28.5 grams of marijuana or more than 4 grams of concentrated cannabis (misdemeanor for individuals over 18 punishable with up to 6 months of county jail and/or fine of up to $500.00, infraction for individuals under 18 years punishable with drug counseling);
- • Possession of marijuana or concentrated cannabis on the grounds of any K-12 school while school is in session(Misdemeanor for individuals over 18 years old punishable with fine of up to $250.00 for first offense and Infraction for individuals under 18 years old).
Marijuana Cultivation- Health & Safety Code § 11358
An individual over 21 years of age can cultivate up to 6 plants in his residence in a visible area.
Misdemeanor: Cultivating over 6 plants is a misdemeanor which can be punished with 6 months in county jail and/or fine up to $500.00.
It is a felony if individual cultivating has:
- A violent felony in record;
- 2 or more prior conviction of over 6 plants;
- A violation charge for environmental law in relation with the cultivation.
Marijuana possession with intent to sell – Health & Safety Code § 11359
Under California Law a business may operate and sell marijuana if done in accordance with state license requirements, and possibly local licenses as well in certain cities. A license is issued by the Bureau of Marijuana Control.
If a business sell marijuana without license it will be violating the Health & Safety Code §11360 and the person will incur penalties as misdemeanor or felony charges can be filed against the person selling without a license.
Misdemeanor will apply when simple offense of selling without license, transporting or giving away up to 28.5 grams of marijuana occurs: It can vary from up to 6 months in county jail and/or fine of up to $1,000.00. If the individual is under 18 years old of age, the charge is not misdemeanor but an infraction.
If it a felony if individual has:
- Prior conviction for statutory serious violent felony which includes but is not limited to: murder, sex offender, gross vehicular manslaughter while intoxicated;
- 2 or more prior misdemeanor convictions for marijuana sale without license;
- Sale or attempt to sale of marijuana to a person under 18 years of age.
- Charge of transportation of over 28.5 grams of marijuana.
A felony charge can be punished with up to 3 years of state prison.
Proof of intent to sell includes:
a. Large quantity of marijuana
b. Presence of items such as scales and containers
c. Cash and weapons
d. Opinion of officer arresting the individual.
Selling marijuana to a Minor- Health & Safety Code § 11361
Under the California Law is it a felony to sell marijuana to a person under 18 years old. It is also a felony to sue a minor to transport, carry, sell, give away, furnish, administer or prepare for sale any amount of marijuana.
The penalty for this crime is state prison sentencing for up 7 years if the minor involved is under 14 years old and up to 5 years if the minor is over 14 years old.
Concentrated form of Marijuana- Health & Safety Code § 11361
Under the California Laws for Marijuana and Proposition 64 incorporated in November 2016, the use of Marijuana in the concentrated form called Hash or Hashish is legal if the use or possession is not over 4 grams.
Driving in possession of Marijuana- California Vehicle Code §23222(b)
The California Vehicle Code prohibits driving in possession of Marijuana in the amount greater than 28.5 grams or 4 grams of the concentrated form.
The possession over the amounts consistent with the law authorizing the use, is an infraction with a fine of $100.00. In addition, the Health & Safety Code § 11357 provides for penalty for the possession of amount greater than 28.5 grams and 4 grams for Hash.
Driving Under the Influence Vehicle Code § 23152(e) and Health & Safety Code § 11362.3
The California Health and Safety Code prohibits the presence of marijuana in open containers or packages in vehicle while the possessor is driving or riding a car, boat or aircraft.
Under the Health & Safety Code the fine for such infraction of code is $250.00. If the possessor is under 18 years old the penalty is community service.
Penalties for DUI marijuana under the California Vehicle Code
The consequences of a conviction for DUI of marijuana are the same as the California DUI penalties involving alcohol. Penalties for a first-time DUI of marijuana may include:
Informal (summary) probation for three (3) to five (5) years,
Between ninety-six (96) hours and six (6) months in county jail,
A fine of between three hundred ninety dollars ($390) and one thousand dollars ($1,000), and
Suspension of your driver’s license for six (6) months.3
As with other forms of DUI, the penalties for VC 23152(e) DUI of marijuana increase with each conviction for any form of DUI including DUI of alcohol and DUI of drugs within a 10-year period. This chart summarizes the penalties for DUI of marijuana for defendants with different records.