California voters have now declared the recreational use of marijuana legal in the state. Proposition 64, which was passed by the voters by a margin of 56% to 44%, allows for the personal use of marijuana beyond what was previously restricted to medical use only. The new law also provides for the detailed regulation of commercial marijuana cultivation, processing and sales.
There are strict limitations, however. The legal possession and cultivation of marijuana for recreational use is limited to adults 21 years of age or older. For adults 18 years old but less than 21 years old, possession is still illegal. However, the penalties have been substantially reduced. For minors under 18 years old, there are even more restrictions.
Most notably, and well-considered, are the changes to the criminal sanctions for marijuana possession, cultivation, transportation, and distribution. These changes apply to both current cases and prior convictions. And these changes affect both adults and minors.
The following is a general summary of the changes regarding the legal use and possession of marijuana as well as the effect on prior criminal convictions for marijuana offenses.
Possession: No More than 28.5 grams
Generally, for adults over 21 years old, possession of up to 28.5 grams (one ounce) of marijuana or up to 4 grams of concentrated cannabis is no longer a criminal offense. (Cal. H&S Code § 11357(a)). There are restrictions on the public consumption of marijuana as well as a prohibition against using marijuana while driving or being under the influence while driving.
For adults at least 18 years but less than 21 years old, possession is reduced to an infraction punishable by a $100 fine only. (Cal. H&S Code §11357(a)(2)).
For minors under the age of 18 years, possession is also reduced to an infraction. However, for a first offense, the minor will be required to complete 4 hours of drug education or counseling and no more than 10 hours of community service. (Cal. H&S Code §11357(a)(1)(A)).
For minors under the age of 18, upon a second offense for possession, the minor will be required to complete a 6 hour drug education or counseling program and perform no more than 20 hours of community service. (Cal. H&S Code §11357(a)(1)(B)).
No one may possess the legal amount of marijuana or concentrated cannabis on or within school grounds where any K-12 instructional classes or school activities take place during the hours that the school is open for instruction or school activities. The penalties for minors possessing marijuana on school grounds are the same for simple possession—drug education or counseling along with community service. (Cal H&S Code §11357(d)). For any one over 18 years old, a first offense is a misdemeanor punishable by a fine of up to $250 for a first offense and for any second or subsequent offense up to $500 fine and up to 10 days imprisonment in the county jail. (Cal. H&S Code §11357(c)).
Possession: More than 28.5 grams
For possession of more than 28.5 grams (one ounce) of marijuana or 4 grams of concentrated cannabis, the penalties are more severe. There are some exceptions as set forth in other parts of the new law (primarily involving licensed distributers, cultivators, and processors), but for the purposes here, we are summarizing the law for personal, recreational use only.
For any adult 18 years or older, possession over the 28.5 grams is a misdemeanor. The penalty is a maximum of 6 months in the county jail and a fine of no more than $500.00. This means while recreational use of marijuana is legal in California, the quantity you can possess at any one time is limited. (Cal. H&S Code §11357(b)(2)).
For minors under the age of 18, however, the penalties are still far less serious. For a first offense, possession over the quantity limitations above remains an infraction and requires that the minor complete 8 hours of drug education or counseling along with 40 hours of community service. (Cal. H&S Code §11357(b)(1)(A)). For a second offense, the minor must complete 10 hours of drug education or counseling along with 60 hours of community service. (Cal. H&S Code §11357(b)(1)(B)).
Cultivation: No More than 6 Plants
Similar to the possession statutes, Proposition 64 now allows individuals to cultivate their own marijuana within certain quantity limitations. These statutes do not apply to licensed growers. We will take a look at the licensing for commercial growers in a later post.
Any adult over 21 years of age may possess up to 6 plants for cultivation. But anyone over 18 years of age who cultivates more than 6 plants is guilty of a misdemeanor punishable by up to 6 months in the county jail and a fine up to $500. (Cal. H&S Code §11358(c)). These penalties can be more severe depending on prior criminal convictions for serious or violent felonies, offenses requiring registration for sex offenses, and certain prior convictions under the California Water Code, the California Fish and Game Code, and certain provisions of the California Penal Code and Health and Safety Code relating to hazardous substances. (Cal. H&S Code §11358(d)).
For adults between 18 and 21 years of age, cultivation of no more than 6 plants is an infraction punishable by a fine of $100. (Cal. H&S Code §11358(b)). Minors under 18 years old who cultivate marijuana in any amount are guilty of an infraction and are subject to the same punishment as for possession. (Cal. H&S Code §11358(a)).
Possession for Sale/Unlawful Transportation
The simple answer is: no one can possess marijuana for sale or transport marijuana within the state without being properly licensed and meeting the strict regulations under the new statutes. Any adult 18 years or older will be guilty of a misdemeanor and subject to imprisonment for up to 6 months in the county jail and up to a $500 fine. (Cal. H&S Code §11359(b) and (Cal. H&S Code §11360(a)(2)). The penalties can be more severe depending on prior convictions for certain offenses, whether the conviction is a second or subsequent offense for sale of marijuana, or if the conviction involved sale to a minor. (Cal. H&S Code §11359(c) and (Cal. H&S Code §11360(a)(3)).
However, for minors under 18 years of age, possession of marijuana for sale is an infraction and subject to the same penalties as simple possession. (Cal. H&S Code §11359(a) and (Cal. H&S Code §11360(a)(1)). There are additional penalties for other unlawful transportation and attempted importation into the State of California.
Pending and Prior Marijuana Offenses
One of the most effects of Proposition 64 relates to prior convictions for marijuana offenses. Current cases might be dismissed or the offense level and penalties reduced. And prior offenses might be vacated or the criminal records adjusted to reflect a lesser offense.
For adults currently serving a sentence for a marijuana conviction where the conviction would no longer be a criminal offense under Proposition 64 or where the conviction would be for a lesser offense under Proposition 64, you may file a petition with the Court to seek a dismissal or reduction in sentence in accordance with the new law. ((Cal. H&S Code §11361.8(a)). However, there are some limitations on the relief available depending on various factors and circumstances relating to criminal history or if the court finds there is a risk of unreasonable danger to public safety. (Cal. H&S Code §11361.8(b)).
For anyone who has completed a sentence for a marijuana conviction where that conviction would no longer be a criminal offense under the new law or where the offense would be a lesser criminal charge under the new law, you may apply to the Court to have the conviction dismissed and the records sealed because the conviction is no longer legally valid. Or you may seek to have the conviction redesigned to the lesser offense, if applicable. (Cal. H&S Code §11361.8(e)).
For anyone under the age of 18 who has been arrested or convicted under any criminal statute affected by Proposition 64, with very limited exceptions, the arrest and conviction records must be destroyed within 2 years from the date of conviction, or the date of arrest if there was no conviction, and no later than when the minor turns 18. This also applies to existing records of prior convictions as a minor for marijuana offenses affected by Proposition 64 (Cal. H&S Code §11361.5(a)). The new law also provides a means to petition the Department of Justice to destroy records of very old convictions under certain statutes as they existed prior to January 1, 1976. (Cal. H&S Code §11361.5(b)).
Such petitions and applications have certain procedural requirements. If you think you are eligible to have a current or prior marijuana conviction dismissed or reduced, consult with a qualified criminal defense lawyer.
This article is for informational purposes only and is not intended to provide legal advice or to solicit clients. This article is not intended and does not create any attorney-client relationship. Every legal matter has unique aspects and requires consultation with a licensed attorney in your jurisdiction.