Medical Marijuana & Marijuana Charges

Medical Marijuana Defense

Medical marijuana: Medical patients and their designated primary caregivers may legally possess and cultivate (but not distribute or sell) cannabis under Health and Safety Code 11362.5 (Prop 215) if they have a physician's recommendation or approval. State law SB420, now codified as California Health & Safety code sections 11362.7-11362.83, set a state threshold of 6 mature OR 12 immature plants per patient, allowing locals to pass higher allowances. City and county laws may further limit the amount of plants a patient may possess.

Medical Marijuana Recommendation

Patients must carry a letter from a doctor when possessing marijuana. The letter must recommend that the patient will benefit from marijuana use.  Even though medical THC is legal, a number of physicians and patients are still arrested and charged with violating state and federal drug laws.

medical marijuana attorney santa barbara
A valid recommendation from a doctor is a defense to state drug charges, but is no shield from federal prosecution.

Defending Approved Medical Use

Medical marijuana is legal in California, but marijuana possession is illegal according to federal law. Medical marijuana is an affirmative defense to state criminal charges.

Arguing Medical Uses & Prop 215

The people of California legalized the medical marijuana use with the passage of Proposition 215 in 1996.

Tetrahydrocannabinol (THC), the psychoactive ingredient in cannabis, is very useful in treating all types of diseases and illnesses. THC's medicinal properties have been known for years.

Cannabidiol (CBD) does not create a "high" and can be taken orally. Anecdotal studies have shown the CBD can reduce epilepsy in children.

Cannabigerol (CBG) is not psychoactive. It has been shown to inhibit tumor growth in mice.

medical marijuana attorney

Medical Use of THC

THC has been used for medical purposes longer than it has been used for recreational purposes. The ancient Chinese recognized THC as one of their 50 fundamental herbs. THC has been shown to be effective in combating a number of medical conditions through:

  • Established findings -- THC has been proven effective in treating asthma and glaucoma. THC also stimulates appetite, reduces pain, and combats nausea and vomiting.
  • Preliminary findings -- THC may be effective against irritable bowel syndrome, fibromyalgia, adrenal diseases and migraines.
  • Anecdotal evidence -- A variety of studies indicate that THC may be useful in treating:
    • Alcohol abuse.
    • Bipolar disorder.
    • Depression.
    • Leukemia.
    • Parkinson's disease.
    • Epilepsy.
    • Sleep apnea.
    • Other physical and neurological conditions.

medical marijuana charges

Possession of Marijuana

Possession of one ounce (28.5 gms) or less of marijuana (cannabis) by persons over 21 years of age is no longer a crime after the passage of the Adult Use of Marijuana Act in November 2016.

Possession of one ounce or less of marijuana by persons under the age  of 21 is an infraction.

marijuana lawyer santa barbara
As of November 2016, possession of less than one ounce of marijuana is legal for persons over the age of 21, and an infraction for those under the age of 21.

Possession of larger amounts of cannabis by persons over 18 is a misdemeanor punishable by jail time and a fine. A medical marijuana recommendation from a physician is a valid defense to these charges. For those under 18 it is an infraction punishable by drug counseling and community service.

Possession of an marijuana in a vehicle is illegal under Vehicle Code Section 23222, unless the container is sealed or inside the trunk.

No arrest or imprisonment is allowed for possession of less than one ounce. However, police often arrest people by charging felony intent to sell, instead of simple possession.

Diversion

First- and second- time possession-only offenders may demand a drug treatment program instead of jail. Upon successful completion of the program the case is dismissed.

Possession (and personal use cultivation) offenders can also avoid conviction by making a preguilty plea under Penal Code 1000, in which case their charges are dismissed upon successful completion of a diversion program.

medical marijuana attorney
Beginning in November 2016, possession of up to 8 grams of concentrated marijuana is legal for persons over age 21.

Concentrates

Possession Of Up To 8 Grams

As of November 2016, due to the passage of the Adult Use of Marijuana Act in California, it is legal for persons over 21 years old to possess up to 8 grams of hashish or concentrated cannabis.

For persons aged 18 to 21, possession of less than 8 grams of concentrates is an infraction punishable by a maximum fine of $100.

For persons under 18 years old, possession of less than 8 grams of concentrates is an infraction punishable by drug counseling and community service.

Possession of More Than 8 Grams

For persons aged 18 or older, possession of more than 8 grams is a misdemeanor punishable by a fine of up to $500 and a maximum of six months in jail.

For persons under 18 years old, possession of more than 8 grams of marijuana concentrate is an infraction punishable by drug counseling and community service.

medical marijuana lawyer
Despite the 2016 "legalization" of marijuana in California, possession with intent to sell marijuana is still a crime, and can be a felony for people over the age of 18.

Selling Marijuana

Possession with intent to sell:

By persons over the age of 18 of any amount of marijuana can be a misdemeanor or felony under Health and Safety Code 11359.

For person under the age of 18, possession with intent to sell is an infraction punishable by drug counseling and community service.

Police often charge intent to sell if they see such indicia as: scales, cash, multiple packages, "commercial" packaging materials, "excessive" quantity, pay-owe sheets, address books, pagers, etc.

Sale, Transportation & Distribution:

For persons over the age of 18 sale, transportation, or distribution of cannabis is a misdemeanor or a felony under Health and Safety Code Section 11360. The maximum punishment is 4 years in prison. Transporting or giving away one ounce or less is an infraction punishable by a maximum $100 fine.

For persons under 18, sale, transportation, or distribution is an infraction punishable by drug counseling and community service.

Sale or distribution to minors is a felony under Health and Safety Code Section 11359, 11360, and 11361. The maximum punishment under section 11361 is seven years in prison.

medical marijuana attorney
Violating a state environmental statute while cultivating marijuana is a felony.

Cultivation of Marijuana

6 Or Less Plants

Cultivation of up to 6 marijuana plants by a person over the age of 21 is legal under Health and Safety Code 11358.

Persons aged 18 to 21 who cultivate up to 6 marijuana plants are guilty of an infraction punishable by a maximum fine of $100.

Persons under the age of 18 who cultivate any cannabis are guilty of an infraction punishable by drug counseling and community service.

More than 6 Plants

Cultivation of more than 6 marijuana plants by persons over the age of 18 is a misdemeanor or a felony.

Starting January 19, 2016, cultivation is prohibited in Santa Barbara County with 2 exceptions:

  1. Cultivation under 5 specific circumstances for personal medical use.
  2. Cultivation that is legal under state law and existed prior to January 19, 2016.

Suspended license

Driving suspension for minors: Any minor (age under 21) convicted of any marijuana, alcohol, or other drug offense faces a 12-month drivers license suspension, regardless of whether the offense was driving-related. The court may allow restricted license privileges if the minor demonstrates a "critical need to drive." Vehicle Code 13202.5. (Note: This penalty can be avoided by entering a diversion program).

Driving with marijuana

Driving under the influence of marijuana is a misdemeanor and can result in a suspended driver's license.

Driving under the influence: It is unlawful to drive while under the influence of marijuana (or alcohol or any other drug) by Vehicle Code 23152. For evidence of impairment, officers may administer field sobriety tests. Arrestees may also be required to submit to a urine or blood test under Vehicle Code 23612. In the future a roadside swab test could be used.

Marijuana in a Vehicle: Drivers found in possession of less than one ounce of marijuana in their vehicle are liable for a maximum $100 misdemeanor fine under Vehicle Code 23222 (larger amounts are punishable under H&SC 11357(a) and 11359).

Online Resources

NORML - Dedicated to reforming California's marijuana laws.

California Law: search full text of codes: www.leginfo.ca.gov/calaw.html.

Federal Law: Marijuana is also illegal under the federal Controlled Substances Act. Federal charges are typically brought only in large cases where commercial distribution is suspected (e.g., cultivation of several hundred plants).

medical marijuana lawyer
Federal authorities continue to raid commercial cultivations that violate state laws.