Marijuana is now legal – What does that mean?

Posted: January 18th, 2018 | Expert Advice | No Comments

By Joshua Baskin | Orange County Criminal Attorney Law Firm

As I am sure you are aware by now, recreational use of marijuana will become legal in California starting January 1. But what does that mean?  Can anyone now legally use it, grow it, sell it or buy it? There are a lot of idiosyncrasies with the law and what is legal for you to do.  But what is critical to remember, there are limitations, restrictions and consequences for violations of these laws that can still have you facing serious legal consequences.

At Orange County Criminal Attorney Law Firm, we have done the necessary due diligence in examining the new law and its specifics to determine what you should know and what potential repercussions you can face.  If, and when, you get in trouble, hiring knowledgeable and qualified legal representation such as that at Orange County Criminal Attorney Law Firm, which will help guide you through any legal issue that may present itself.

In November 2016, when California voters passed Proposition 64, the Adult Use of Marijuana Act (AUMA), they made California one of just a few states where recreational marijuana use for adults would now be legal.  Basically, it will be legal for adults over the age of 21 in California to privately use, possess and share up to one ounce of cannabis, as well as to grow no more than six plants for your personal use at home.  The passage also legalizes the commercial sale, distribution and production of cannabis for adult use at properly state-licensed facilities as well.

However, over the past year a lot has been involved in the laws and regulations being created for the allowance of enacting this (law?) that must be adhered to.  It is not free reign of being able to use marijuana, there are still guidelines, regulatory requirements and laws in place and continuously being re-examined, that should these rules be violated, criminal action can and will be taken against you.

Let’s talk about what is considered legal adult use under the Adult Use of Marijuana Act (AUMA) and the Health and Safety Codes that have been put into place.

  1. Possess, process, transport, purchase, obtain, or give away to persons 21 or older, not more than one ounce of cannabis or 8 grams of concentrated cannabis [HSC 11362.1(a)(1) and (2)]. (So basically, this means that anyone that is 21 years or older is allowed to have in their possession, or can purchase or transport no more than one ounce of marijuana legally).
  2. Cultivate, possess, plant, harvest, dry or process not more than six live plants and possess the produce of the plants [HSC 11362.1(a)(3)]
  3. Any cannabis more than one ounce is stored in the person’s private residential property, in a locked space, and not visible from a public place.
  4. No more than six plants are planted at any one residence at one time.
  5. Local governments may impose reasonable restrictions on cultivation, but may not forbid cultivation indoors in a residence or accessory structure that is fully enclosed and secured. Locals are free to prohibit outdoor cultivation altogether until such time as adult use is made legal under federal law [HSC 11362.2(b)]

Now, though legalization has occurred within California, lets discuss what is still prohibited under the AUMA, the Health and Safety Codes and what you as a cannabis user may not do.

  1. Smoke, vaporize, or ingest cannabis or cannabis products in any public place. (This means that, though smoking marijuana will become legal, it is not legal to do so in public settings, it is only allowed in private. To help add to that, if you cannot smoke a cigarette there, you for sure cannot smoke or ingest cannabis there either.
  2. Smoke or vaporize cannabis in any non-smoking area, or within 1,000 feet of a school, day care or youth center while children are present, except privately at a residence.
  3. Consume cannabis or possess an open container of cannabis while driving or riding as a passenger in any motor vehicle, boat or airplane.
  4. Possess or use cannabis on the grounds of a school, day care or youth center while children are present.
  5. Manufacture concentrated cannabis with a volatile solvent.

In addition to the restrictions above, the new law does not really affect, nor repeal the following:

  1. The rights of employers to maintain a drug and alcohol-free workplace, or to have policies forbidding use of cannabis by employees.
  2. The ability of landlords and other private parties from prohibiting or restricting use of cannabis on their privately-owned property.
  3. The ability of government agencies to prohibit or restrict use of cannabis within a building they own or occupy.

Something to keep in mind that for the most part, violation by adults of offenses noted for some of the above are punishable by either non-arresting infractions subject only to a fine, or as criminal misdemeanors which can have more serious repercussions.  Those that are of a very serious nature can be filed as felony matters.  Should that be the case, the consequences of which can be quite sever and life altering.

Let’s go further into the various Health and Safety Codes that can bring forth criminal prosecution for violation:

HSC 11357 – Illegal Possession

  • Underage possession of one ounce or less by persons 18-21 will be considered an infraction.
  • Illegal possession of more than one ounce (or 8 grams of concentrates) will be considered a misdemeanor.
  • Possession on the grounds of a grade school of one ounce or less during school hours is an infraction for the first offense. However, subsequent offenses will be considered misdemeanors.

HSC 11358 – Illegal Cultivation

  • Underage cultivation of six plants or less by person 18-21 is an infraction.
  • Illegal cultivation, harvesting, drying, or processing of more than six plants will be a misdemeanor. However, there are enhancements that could turn this into a felony matter.  Some of those include:
  • Persons with two or more prior convictions for illegal cultivation.
  • Offenders with two prior violent felony “strikes” and registered sex offenders.

HSC 11359 – Possession with Intent to Sell

  • Possession of cannabis for illegal sale is a misdemeanor. Once again, there are various enhancements that could have this charge turn into a felony matter.  Some of those include:
  • Third time offenders
  • Offenders with two prior violent felony “strikes” and registered sex offenders.
  • Knowingly selling to minors that are 18 years of age or less
  • Employing a person under 21 years of age to help sell, cultivate, transport, etc.

HSC 11360 – Illegal Sale, Import, Transport or Distribution

  • Illegal selling, furnishing, administering, giving away, transporting for sale or importing into the state is considered a misdemeanor. As before though, there are enhancements that can result in a violation becoming a felony matter.  This includes things such as:
  • Importing into the state or transporting for sale out of the state more than one ounce of cannabis or 4 grams of concentrate.
  • Third time offenders
  • Offenders with two prior violent felony “strikes” and registered sex offenders.
  • Knowingly providing to minors that are 18 years of age or less

Now, here at Orange County Criminal Attorney Law Firm we have made it a point to be updated on the various changes and additions to the laws, and fully understand its possible repercussions to clients.  We stay vigilante on all case law that can have potential effect on how the statutes are interpreted and how best we can utilize this information in vigorously representing you throughout your case.  In other words, we stay diligent in following the rulings from other Court’s especially those higher up, such as the Appellate Court, Circuit Court and/or State Supreme Court to see how they interpret and opine about issues that arise under these statutes.  How are they interpreting these new laws and see how they should be followed or laid out?  From those rulings and decisions, we can better equip ourselves in the defense of your case, or guide our approach for the matter at hand.

With the forthcoming changes to the law, you must remember that there are still repercussions that can affect you beyond just those of a legal nature. The use of marijuana can still affect your employment as noted above. Employers can still have employment policies in place regarding drug and alcohol policies that do not allow you to use during or be under the influence during work hours.  Violations of such policies can lead to not only termination of employment, but also a potential loss of any type of license you may carry.  Someone that has a license, such as a nurse or a teacher, have the potential of losing their licenses for any type of drug convictions, even with the current changes.  In addition, some current laws are not affected by the AUMA changes.  You must be aware that things such as driving under the influence are still prohibited under the law.  Just as with alcohol, Penal Code section 23152 still will address those issues of driving under the influence of drugs, as well, as alcohol.  It is important to note that even today some of these current statutes are being examined and probably will be revised and edited as the Court’s face cases that they have not before since the enacting of the AUMA.  The State legislature has tried to address many of the potential issues and reverberations from this change to current laws that may be affected.  However, it will be over time that some of these continue to be re-examined, modified and adjusted to fit the needs after the AUMA is fully in place and in effect.

Something that I would like to address now, and has not really been publicized much, is the changes that Proposition 64 will have on those that have prior cannabis/marijuana convictions.  These are outlined within the Health and Safety Codes of statute 11361.7 and 11361.8.  The changes within Prop. 64 will eliminate or downgrade many cannabis offenses from previous felonies to misdemeanors and misdemeanors to infractions.  If you have a prior conviction for an offense falling within these statutes that would have resulted today in receiving a lesser or no penalty, then we can help you.  Like what has occurred with Prop 47, at Orange County Criminal Attorney Law Firm, we can petition the court for them resentence you under these new guidelines or potentially dismiss the matter altogether and off your record.  We will study your case closely to determine what the best possible avenue to proceed with in defense of your case is, how best to approach various issues or circumstances and so forth.  The criteria within it can have its own individual effects or reverberation upon the possible outcome or results, but we at Orange County Criminal Attorney Law Firm will put together with you our game plan and path of process and walk you through it every step of the way.

It’s important to keep in mind that we have overviewed some of the legalities and illegalities of the marijuana laws and potential consequences someone may face. But there is a litany of other violations that could create a criminal investigation and your potential arrest and criminal charges filed against you even with this new enactment put into place.  As always is the case, it is important that you be aware of your rights.  That with these changes to the lay of the land, it takes time for all the acceptance, proper enforcement and re-examination of its effects, consulting a legal representative is always important and vital to ensure you are covered and knowledgeable.  Always be sure to keep in mind that should you be stopped, arrested or cited for a violation, or may be interested in reviewing a past conviction, here at Orange County Criminal Attorney Law Firm we will sit with you to answer all your questions, guide you through all stages of the process, and any possible criminal action you may face.

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