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In recent years, measures decriminalizing or even legalizing possession of specified maximum amounts of marijuana for personal use have been approved by a number of states and localities, as have an even greater number of laws relating to controlled medical marijuana use.

California Recreational Marijuana Law

Although the stated goal of groups such as the National Organization for the reform of Marijuana Laws (NORML)  remains total legalization of marijuana at all levels, the drug remains illegal under federal law, and there is no indication that any state is seriously considering a complete repeal of all pot-related criminal sanctions. Even in the Netherlands, where personal recreational use is famously tolerated, the drug remains technically illegal. Dutch police reportedly aggressively pursue commercial growers,  many of whom have purported ties to criminal gangs.

 

Though California historically has been in the forefront of U.S. state law reform, the belief that “pot is legal in California” is both incorrect and potentially dangerous.

 

Here is a general breakdown of what is and is not legal when it comes to non-medical marijuana possession, use, cultivation and sale in California.

 

Possession and Cultivation for Personal Use

 

In 2016, California voters approved Proposition 64, which legalized personal recreational marijuana and concentrated marijuana (a/k/a hashish) possession and use by persons 21 and older. Cultivation of a private crop for one’s own use is also permitted.

 

Despite the passage of Prop 64, however, the following remain illegal:

 

‒ Possession of more than 28.5 grams (just a bit more than an ounce) or more than 4 grams of hashish.

‒ As with alcoholic drinks, possession by anyone under age 21.

‒ Possession of any amount on the grounds of any elementary, middle or high school.

‒ Cultivation of more than six plants.

 

These offenses are generally treated as either misdemeanors or “infractions” (similar to a traffic ticket).

 

Possession With Intent to Sell

 

Thanks to Prop 64, it is now legal to sell marijuana, but only if the seller obtains a seller’s license and operates in accord with applicable regulations. Unlicensed sellers to adults face possible jail time of up to six months and a fine of up to $500. Sale to a minor was a felony before Prop 64 and remains so today.

 

The issuance of commercial seller licenses and the adoption and enforcement of regulations will be the responsibility of the newly-created Bureau of Marijuana Control, which issued the first licenses in December 2017.

 

Since unlicensed sellers rarely advertise other than by word of mouth, the intent to sell must be established by the presence or absence of various objective factors, including:

 

‒ Possession of a quantity much greater than typical for personal use.

‒ Possession of items used by sellers, such as baggies or scales.

‒ Possession of pot divided into salable amounts in baggies or other containers.

‒ Simultaneous possession of significant amounts of cash or of weapons.

 

Driving With Marijuana

The California Vehicle Code prohibits driving in possession of even an otherwise legal (i.e., up to 28.5 grams) of marijuana in an accessible location within the vehicle. This prohibition is comparable to the rules regarding the transportation of alcohol. As such, transporting an otherwise legal amount in the trunk while driving is permissible.

 

Indeed, because possession of up to 28.5 grams is otherwise legal, without evidence of use in the vehicle (odor, physical signs or the presence of pipes or discarded “roaches”) most observers agree few local or state law enforcement agencies intend to enforce the prohibition against transporting an otherwise legal amount.

Author Photo

Kerry L. Armstrong

Attorney Kerry Armstrong opened up his law firm, the Law Offices of Kerry L. Armstrong, APLC, in June 2007. Prior to that, he was employed as the senior associate attorney for a large criminal defense firm in San Diego for nine years, eventually being placed in charge of that firm’s branch office in downtown San Diego. At one point, he was managing six attorneys at that firm, as well as several support staff and law clerks. In 2014, 2015, 2016, 2017, 2018, and 2019 Mr. Armstrong was selected for inclusion in the California Super Lawyers list, an honor only awarded to 5% of the nation’s attorneys. In 2017, he was also selected for the Super Lawyers Top 50 in San Diego list. In 2014, he was selected as a Top Attorney by Los Angeles Magazine. Additionally, Mr. Armstrong was also named as a Top Attorney by the San Diego Business Journal in 2014.

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