There is a common misconception about Proposition 64 that anything and everything relating to Marijuana is legal in California, however that is not correct. Possession of Marijuana in California has limitations that restricts for example users or the amount a user may possess. The law itself, as set forth under Proposition 64, does not change the regulations regarding Medical Marijuana, which has been legal in California since 1996. Health and Safety Code Section 11357 is the California statutes that dictates possession of marijuana and its consequences.
What does Health and Safety Code Section 11357 say?
Except as authorized by law, the possession of not more than 28.5 grams of cannabis, or not more than eight grams of concentrated cannabis, or both, by a person under 18 years of age is an infraction, punishable as prescribed, or by a person at least 18 but less than 21 years of age, as prescribed. Similarly, except as otherwise authorized by law, possession of more than 28.5 grams of cannabis, or more than eight grams of concentrated cannabis,of any concentrated cannabis or of more than 28.5 grams of marijuana by persons under 18, or by a person more than 18 years of age, as prescribed.
Except as authorized by law, a person 18 years of age or older who possesses not more than 28.5 grams of cannabis, or not more than eight grams of concentrated cannabis, upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 to 12, inclusive, during hours the school is open for classes or school-related programs is guilty of a misdemeanor, punishable as prescribed, subject to an increased penalty for a second or subsequent conviction. Except as authorized by law, a person under 18 years of age who possesses not more than 28.5 grams of cannabis, or not more than eight grams of concentrated cannabis, upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 to 12, inclusive, during hours the school is open for classes or school-related programs, is guilty of an infraction.
What is the Legal Definition of Marijuana?
“Cannabis” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include either of the following:
(a) Industrial hemp, as defined in Section 11018.5.
(b) The weight of any other ingredient combined with cannabis to prepare topical or oral administrations, food, drink, or other product.”
What are the Penalties associated with unlawful Possession of Marijuana?
Unlawful Possession of Marijuana is charged as an Infraction or as a Misdemeanor. Below you will find a chart indicating the appropriate penalties for each situation resulting in unlawful possession of marijuana:
Possession by Marijuana by people under 21 is an Infraction resulting in Drug Counseling and community service for defendants under 18 and a fine of up to $100 for defendants between the ages of 18-21.
Possession of more than 28.5 grams of marijuana or more than 8 grams of concentrated cannabis for defendants 18 and over is a misdemeanor resulting in up to 6 months in county jail and a $500 fine
Possession of more than 28.5 grams of marijuana or more than 8 grams of concentrated cannabis for defendants under 18 is an Infraction resulting in drug counseling and community service.
Possession of marijuana or concentrated cannabis on the grounds of a K-12 school for defendants 18 and over is a Misdemeanor resulting in a fine up to $250 for a first-time offense.
Possession of marijuana or concentrated cannabis on the grounds of a K-12 school for defendants under 18 is an Infraction that is punishable by Drug counseling and community service.
What are the common legal defenses to California Health and Safety Code 11357?
The defenses for a HS 11357 charge depends predominantly on the specific subdivision of the charge alleged against the defendant. Generally, the most common defenses to a charge under 11357 are the following:
- The marijuana was discovered during an illegal search and seizure.
- The marijuana was not yours.
- Whatever you were possessing wasn’t marijuana
- Inadvertence (i.e. no knowledge that the marijuana was there)