Possession of Marijuana

Orange County Marijuana Possession Attorney

The law on marijuana possession has evolved quite a big the past few years. Under California Health and Safety Code 11357, there are several different types of marijuana possession laws. If you are being charged with marijuana possession, it is important to know which marijuana law can apply to you.

Concentrated Cannabis

Concentrated cannabis, or “weed wax”, is illegal to possess. This crime can be charged as either a felony or a misdemeanor. A conviction can result to up to 3 years in jail for a felony, and up to one year in jail for a misdemeanor. A fine of $500 can be imposed on top of other penalty assessment fees.

Less than 28.5 grams

Possession of marijuana that is less than 28.5 grams, that is not concentrated cannabis, is now only an infraction punishable by a fine of $100.00.

More than 28.5 grams

Possession of marijuana that is greater than 28.5 grams, that is not concentrated cannabis, is a misdemeanor and punishable by up to 6 months in jail, and a fine of up to $500.00. Note that having too much marijuana can lead to a suspicion of having an intent to sell which is a different crime.

There are several defenses available to a marijuana possession charge, but it is important to consult with a Orange County marijuana possession attorney to put the facts of the case into a defense. You may also be eligible for a drug diversion program if you are facing a marijuana possession charge.

Punishment

A marijuana possession conviction can lead to a variety of punishment ranging from a slap on the wrist to a severe jail sentence. The punishment you face will depend on which marijuana possession code you are charged with. Drug diversion class may be eligible for a marijuana possession conviction. Consult with an attorney to see if you’re eligible. A drug diversion program allows for an opportunity to get your conviction dismissed upon completion of the program.

Possession of Concentrated Cannabis – California Health & Safety Code 11357(a)

This crime is a wobbler, meaning it can be charged as a felony or a misdemeanor. A felony conviction can result in up to 3 years of jail. A misdemeanor conviction can result in up to 1 year of jail.

Possession of Marijuana – 28.5 grams or less – California Health & Safety Code 11357(b)

Having less than an ounce of marijuana is an infraction and will result in a $100.00 fine.

Possession of Marijuana – Over 28.5 grams – California Health & Safety Code 11357(c)

Possessing over 28.5 grams of marijuana is a misdemeanor and can result in up to 6 months in jail and a $1,000.00 fine.

Elements

The defendant is charged with possessing concentrated cannabis, a controlled substance [in violation of Health and Safety Code section 11357(a)].

To prove that the defendant is guilty of this crime, the People must prove that:

  1. The defendant [unlawfully] possessed concentrated cannabis;
  2. The defendant knew of its presence;
  3. The defendant knew of the substance’s nature or character as concentrated cannabis; AND
  4. The concentrated cannabis was in a usable amount.

A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces [or debris] are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.

Over 28.5 grams

The defendant is charged with possessing more than 28.5 grams of marijuana, a controlled substance [in violation of Health and Safety Code section 11357(c)].

To prove that the defendant is guilty of this crime, the People must prove that:

  1. The defendant [unlawfully] possessed a controlled substance;
  2. The defendant knew of its presence;
  3. The defendant knew of the substance’s nature or character as a controlled substance;
  4. The controlled substance was marijuana; AND
  5. The marijuana possessed by the defendant weighed more than 28.5 grams.

[Marijuana means all or part of the Cannabis sativa L. plant, whether growing or not, including the seeds and resin extracted from any part of the plant. [It also includes every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin.] [It does not include the mature stalks of the plant; fiber produced from the stalks; oil or cake made from the seeds of the plant; any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake; or the sterilized seed of the plant, which is incapable of germination.]]

[The People do not need to prove that the defendant knew which specific controlled substance (he/she) possessed, only that (he/she) was aware of the substance’s presence and that it was a controlled substance.]

Defenses

There are a number of defenses available if you are being charged with being in possession of marijuana. It is important to speak with a marijuana possession attorney if you are facing a charge. The following defenses are the common defenses that may be available to you.

Not in Possession

The prosecutor must prove you were in possession of the marijuana. Circumstances can show that the marijuana obtained was not in your possession at the time of your arrest. For example, the marijuana was found with a passenger in the car and not on your own body. However, the law does allow for two people to possess something at the same time. A person does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person. Also, agreeing to buy a controlled substance does not, by itself, mean that a person has control over that substance.

<Defense: Compassionate Use>

Having a medical marijuana card can be an affirmative defense to marijuana possession.

Possession of marijuana is lawful if authorized by the Compassionate Use Act. In order for the Compassionate Use Act to apply, the defense must produce evidence tending to show that (his/her) possession or cultivation of marijuana was (for personal medical purposes/ [or] as the primary caregiver of a patient with a medical need) with a physician’s recommendation or approval. The amount of marijuana possessed must be reasonably related to the patient’s current medical needs. If you have a reasonable doubt about whether the defendant’s possession or cultivation of marijuana was unlawful under the Compassionate Use Act, you must find the defendant not guilty.

A primary caregiver is someone who has consistently assumed responsibility for the housing, health, or safety of a patient who may legally possess or cultivate marijuana.

If you are facing a marijuana possession charge, call the Law Offices of Nam Q. Doan | OC Legal Defense today at (714)248-DOAN(3626). I will help you fight the charges.