After decriminalizing possession of 28.5g of marijuana and legalizing medical marijuana in 1996, California marijuana statutes have experienced drastic changes. The laws were further relaxed in 2016 after adults 21 or older were allowed to buy, possess or use marijuana for recreational purposes. Although marijuana laws have been relaxed, it remains a controlled substance that could put you on the wrong side of the law.
When you or an immediate family member has been arrested in Pasadena for possession of marijuana, you should talk to the Michele Ferroni Pasadena Criminal Attorney Law Firm because these laws are complex and constantly changing. You can easily find yourself in jail because you were not aware of what action is legal or illegal. Our lawyers have provided the information below to help you understand marijuana possession laws and your rights.
Explanation of Possession of Marijuana Laws
Just because California legalized the recreational use of marijuana in January 2018 does not mean that all drug laws were relaxed. The state still enacts strict laws to regulate the illegal possession of cannabis. You will face severe penalties when you are arrested for violating these laws. One law that criminalizes unlawful cannabis possession is Health and Safety Code 11357 (HS). As per the statute, it is still a crime to:
- Possess over 28.5g or an ounce of cannabis, or at least 8g of hashish for recreational use
- Possess marijuana when you are 21 or younger, except based on California medical cannabis laws
- Possess cannabis on K-12 school grounds while learning is in session
Although these statutes legalize the use of cannabis within the legal bounds, there are restrictions on the cultivation, procuring, or use of marijuana. One of the restrictions is that you can only smoke or ingest the controlled substance in isolation and with permission from the property owner. Even if recreational marijuana use is allowed, your landlord or employer can prevent you from consuming it on their property without violating your constitutional rights. Besides, you can use the controlled substance in a business premise that is in full compliance and licensed to conduct commercial marijuana activities.
Nonetheless, marijuana use in a tobacco smoking zone is an infraction. Again, it is illegal to possess an open container of marijuana in the car, drive passengers or ride a bicycle while intoxicated by marijuana.
It is not easy for the prosecutor to convict you for possession of marijuana. A conviction is possible if they can demonstrate the following facts beyond reasonable certainty:
You Were Carrying Marijuana
The prosecutor must demonstrate that you were in actual, constructive, or joint ownership or possession of cannabis. Actual control or possession means immediate physical control over the controlled substance. The drugs could be in your purse or backpack.
Sometimes, you will be arrested for possession even if the arresting officers do not find the drug on you. If they prove that you had actual physical control of the substances shortly before the search, you will violate HS 11357. Assume you are stopped at a checkpoint. As the police conduct their investigations, you consume the ounce of marijuana you were carrying. Sadly, an officer notices your actions. You will face HS 11357 violation charges because an officer saw you carrying marijuana before ingesting it.
The other form of possession is the constructive one. Constructive possession is when the cannabis is not found in your pocket or purse but in a location under your control. For instance, you are visiting your girlfriend when the police search your house and find significant amounts of weed in your garage. You will be deemed in constructive possession because even if you were not at home when the controlled substance was found, you had control over the house and garage where the drugs were found. However, proving possession will not be quick when you only have access to a location but no control.
The other possession type is joint possession. It happens when you and someone else have joint possession, whether constructive or actual, of marijuana. In the example above, when you share the garage where the marijuana is found with your roommate, the evidence will show that you both knew of the drug’s presence. You will face charges for joint possession under HS 11350.
You Were Aware of the Drugs in Your Possession
Another fact the prosecutor must prove is that you knew of the existence of marijuana and its nature. In your defense, you can maintain that you did not violate the law because:
- You lacked knowledge of the presence of the cannabis
- You lacked understanding of the kind of substance in your control.
You Possessed Usable Amounts
Lastly, the prosecutor must prove the quantity of cannabis you were carrying was usable or adequate to cause the usual effects of the drug after ingestion. When you only have residues or remains of the controlled substance, the HS 11357 violations charges against you will be reduced or dismissed because the amount does not fit the description of the law.
Consequences for Marijuana Possession
The use of marijuana outside the provisions of HS 11357 is punished severely. When under 18 years and apprehended for the crime, the prosecutor will charge you with an infraction. If the court discovers it is your first offense, you must complete four hours of drug education and treatment or as much as ten hours of community labor for at most sixty days. For a repeat offender, a conviction will result in six hours of drug education and treatment and twenty hours of community labor for as much as ninety days.
Similarly, when over 18 but under 21 are arrested for illegal possession, the prosecutor will file infraction charges. A sentence for the infraction attracts a financial court-imposed fine of $100. The count becomes a misdemeanor. An apprehension for having over an ounce or over 8g of hashish will result in misdemeanor charges. Upon conviction, you will face jail incarceration for six months and a monetary court fine not surpassing $500. Besides, the court could impose both a jail sentence and a court fine.
When younger than 18 years and are arrested for possessing more than an ounce of marijuana or over 8g of hashish, a conviction for a first-time offense will result in up to eight hours of drug treatment and education and no more than forty hours of community labor for a duration not surpassing ninety days.
Despite the legalization of marijuana, possessing the designated quantity does not always mean you are on the safe side of the law. When under 18 and you keep an ounce of marijuana or 8g of hashish on the grounds or within a K-12 school offering instructions in kindergarten or any of grades 1 to 12 when the school is open, a conviction for HS 11357 violation will result in misdemeanor penalties.
When found guilty, you will face at most $250 in monetary court fines for a first offense, a fine of $500, and jail incarceration for at most ten days for a second or consequent offense. Nonetheless, when you are under 18 years and are arrested for marijuana possession within a K-12 school, you will face lesser penalties because no court fines are imposed. Instead, you face infraction charges whose conviction requires you to complete four hours of drug education and treatment or ten hours of community labor.
You must understand that the adoption of Prop 64 did not end the prosecution of cannabis-related offenses. It is within the law to use or sell marijuana, but only when you possess a license from the relevant government agency. Engaging in any unregulated marijuana activity can result in criminal charges for violations of various statutes like:
- HS 11359 possession of marijuana for sale
- HS 11358 marijuana cultivation
- HS 11360 sale or transportation of cannabis
Furthermore, marijuana possession is still a crime under the federal statutes. It means that a federal prosecutor has the discretion to charge you for cannabis possession when they see it necessary, even when the quantity is legal under California laws. So far, no one has faced charges for possession of legal limits of marijuana by federal prosecutors, but you risk prosecution if you violate the federal marijuana statutes.
When the marijuana found in your possession within K-12 grounds is beyond the legal quantity, the penalties will be more stringent, so you should consider hiring a defense lawyer. Having legal counsel on your side will lessen the charges or penalties when sentenced.
Instead of the above penalties, the court can impose alternative sentencing through a drug diversion program. If you are convicted for a nonviolent possession of marijuana offense, the court can sentence you to drug rehabilitation or treatment program instead of jail. Your lawyer should convince the court to impose diversion because you will avoid a criminal conviction record once you complete the program.
Legal Defenses for HS 11357 Violation
As mentioned above, just because the state adopted Prop 64 does not exempt anyone from marijuana possession charges. Police, prosecutors, and other government agencies are working relentlessly to prosecute individuals violating HS 11357. Therefore, when you possess over an ounce of cannabis or 8g of hashish, you have a reason to be afraid of HS 11357 violation charges and penalties.
Several legal defenses can be used to contest marijuana possession charges in Pasadena. Legalizing recreational and medical marijuana has made some defenses even more robust. The defense strategies you can use in your case are:
Lack of Awareness of the Presence of Controlled Substance
Just because a bag of cannabis has been found in your physical possession does not mean you were aware of its presence. Therefore, you can claim in your defense that you had no knowledge that you were carrying or possessed marijuana. The defense will work where the prosecutor cannot prove you were aware of the presence of the controlled substance. Your lawyer can strengthen the argument by asserting that someone else slipped the drugs into your car or the drugs belong to someone else.
Also, if the drugs were not on your person or under physical control, the arresting officer mistook you for another person, and the drugs were not yours, you will be convicted of the crime. Again, you can maintain that you allowed a friend to borrow your car, and they could have concealed the substance in your vehicle without your knowledge. If you can prove that you did not know of the presence of the drugs, you are innocent.
Lack of Knowledge the Material in Your Possession is Marijuana
You are not guilty of HS 11357 violation if you did not know that the material under your control was cannabis. Assume you visit a friend in Pasadena. On your way back, they ask you to deliver a container of dried sage. You pick up the container and place it in your car without knowing it contains marijuana. While driving, an officer stops you and, on further investigations, discovers you were moving marijuana in the vehicle. Under the circumstances, you are innocent of HS 11357 violation because you believed you were transporting salt in a container and not marijuana,
Medical Cannabis Defense
Under HS 11362.5, the Compassionate Use Act, it is lawful for authorized patients to possess, transport, or use medical cannabis. Caregivers of medical cannabis patients are also allowed to transport the substance for the terminally ill medical needs.
Similarly, city and county ordinances regulate medical marijuana as outlined under the Compassionate Use Act. Therefore, you need to speak to the Michele Ferroni Pasadena Criminal Attorney Law Firm whenever you or a friend is apprehended in Pasadena for cannabis possession. An experienced lawyer could help contest the charges if you possessed marijuana within the designated quantity and not more than the provision of the law. Besides, even if federal laws apply in your case, you will not be arrested and charged with cannabis possession if you have complied with state regulations.
Another defense you can use to contest the marijuana possession charges is momentary possession. Under this defense, the burden of proof shifts to your legal expert, who must prove the following elements:
- You only possessed the cannabis momentarily or temporarily
- At the time of possession, you intended to dispose of or destroy the marijuana
- You did not plan to conceal the marijuana from the police
For the defense to work, your defense lawyer must prove the case’s facts with a preponderance of evidence which is a different evidentiary standard from the beyond reasonable doubt standard. Under the measure, you must prove that it is more likely than not that the facts listed above are actual.
You Lacked Control Over the Substance
For a sentence for marijuana possession to occur, the prosecutor must demonstrate you had control over the drug. Devoid of this fact in the case, the charges against you should be dropped. The prosecutor will show that you had control over the controlled substance by arguing that they were found in your property which could be a car or home. Even if you never bought or used the controlled substance, you will face charges for HS 11357 violation. Luckily, your defense lawyer can come to your rescue by claiming that just because you purchased the drugs does not mean you had control over them.
Unlawful Search and Seizure
Law enforcement officers, especially those handling drug-related offenses, routinely violate the search and seizure law. As a defendant, you can use the violation of these laws in your defense by asserting that the police did not have a valid search warrant. The lawyer will claim that police lacked probable cause to search your property; therefore, the search warrant used to obtain evidence from your home was invalid. With an invalid search warrant, all the evidence collected will be suppressed, leaving the prosecutor with a weak case that will be dismissed.
Also, you can argue that even if the warrant was valid, they searched a property outside the scope of what is provided, making the proof collected in the location inadmissible in court.
Lastly, if the police initiated an illegal traffic stop leading to the arrest for marijuana possession, you can raise the issue of an illegal search. Once it is proven the stop was unlawful, your lawyer will file a motion to suppress evidence. When successful, the evidence obtained illegally will be withdrawn from the case resulting in charge dismissal or reduction of charges or penalties upon conviction.
Several crimes can be filed in place of or alongside marijuana possession. The offenses include:
HS 11358 defines marijuana or hash cultivation. After Prop 64, it is legal to grow six marijuana plants if you can ensure that you grow them in a locked area except when the local ordinances permit you to grow them outdoors. Besides, whether the plants are in a locked area or outdoors, they must be secure and inaccessible to minors. When you violate any of these requirements by planting more than the designated limit of plants, you will face charges for HS 11358 violation.
The penalties for the offense after conviction depend on whether you are charged with an infraction or misdemeanor. When you are at most 21, growing marijuana is an infraction, and the punishment depends on whether you are below or over 18. Under eighteen, you must complete hours of community labor, drug education, and treatment sessions. And when you are older than 18 but under 21, the court will impose a monetary fine of $100.
You risk charges and conviction for HS 11358 violation as an adult when you grow or dry over six cannabis-living plants. The offense is a misdemeanor and attracts the following penalties when convicted:
- At most, six months in jail
- Court fines of at most $500
Nonetheless, an HS 11358 violation will result in felony charges and penalties when you have a criminal record.
Cannabis Possession for Sale
Prop 64 made it legal for businesses that obtain a valid license and operate within the law to sell marijuana. Unless you have the permit, you cannot possess the controlled substance for sale or with the desire to sell. Typically, when you possess to sell without a license, you violate HS 11359. When convicted of the crime, you will face misdemeanor penalties like jail incarceration for half a year or a court fine not exceeding $500. The judge has the discretion to impose both sentences. Nonetheless, when:
- You have two previous sentences for marijuana possession for sale
- You have multiple violent crimes convictions on your record
- If you willingly sell cannabis to an underage person, you will be charged with a felony. A sentence for this crime will attract 16, 24, or 36 months in jail.
Unlicensed Marijuana Sale
It is illegal under HS 11360 to sell marijuana without a valid license or transport it for sale. You can sell cannabis if you hold the Bureau of Marijuana Control permit. If you are younger than 18, HS 11360 violation is an infraction whose penalties are community hours and drug treatment. Nevertheless, if you are above 18, the offense is a misdemeanor punishable as follows:
- Court fines of at most $1,000
- A jail term of six months
- Both incarceration and court fines
When you have a prior serious felony sentence, it is your third conviction for unlicensed sale of hash, unlawfully imported cannabis to California, or selling the drug to a minor, they will file felony charges. You risk 24, 36, or 48 months of jail incarceration when sentenced. However, do not forget that possessing an ounce of marijuana for recreational use as an adult is legal.
Find an Experienced Pasadena Drug Defense Lawyer Near Me
When cited or apprehended for marijuana possession in Pasadena, CA, you should consider talking to an experienced drug crimes lawyer. At the Michele Ferroni Pasadena Criminal Attorney Law Firm, we are familiar with these violations and know the proper defenses to prevent a conviction. Also, when a conviction is imminent, we will convince the court to offer alternative sentencing, where you will avoid a jail term and criminal record. Call us today at 626-628-0564 to discuss your options and possible penalties.