Colorado was the first state to legalize recreational use of marijuana. Washington and other states are following suit. It may eventually be legalized in California. However, even though California has passed medical marijuana laws, without medical approval, marijuana possession and manufacture remains a criminal offense.
Marijuana Crimes
Marijuana can be involved in a number of criminal charges, including:
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Possession;
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Possession with intent to sell or distribute;
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Distribution, trafficking or sale of marijuana; and
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Cultivation or manufacture of marijuana.
Criminal penalties often depend on the amount of marijuana involved. For example, simple possession of less than an ounce of marijuana is only an infraction, punishable by a $100 fine. However, possession of more than an ounce is a misdemeanor, with possible jail time of up to 6 months, and a fine of up to $500. Cultivation of marijuana is treated much more severely, and is punishable as a felony.
Cultivation of Marijuana Penalties
Under California Health and Safety Code 11358, anyone who plants, cultivates, harvest, dries or processes any marijuana or any part thereof, is punishable by imprisonment. This is a felony violation, and jail time can range from 16 months to up to three years in jail. However, marijuana cultivation charges may be reduced through the state's drug diversion program, which provides for drug treatment in lieu of jail time.
Medical Marijuana Cultivation
California became the first state to provide for medical marijuana exceptions for patients and their primary caregivers. State voters approved Proposition 215, and the California legislature eventually passed the Medical Marijuana Program Act. The Act allows patients and primary caregivers to legally use, possess, and cultivate cannabis for medical purposes.
There are requirements to be considered a legal medical marijuana patient. This includes a recommendation from a licensed physician, to treat any serious or persistent medical condition, treatable by cannabis. Many patients use the voluntary registry which issues ID cards. This offers patients protections from being arrested for possession or cultivation. However, even without a license, a legal medical marijuana patient has an affirmative defense for possession or cultivation, if they are charged.
Limits to Medical Marijuana Cultivation
The issue of how much marijuana a medical patient can possess or grow can be very confusing. This is because the Prop. 215 limit is different from the recommended Senate Bill guidelines, and even this can vary by city or county. Under Prop. 215, patients are entitled to whatever amount of marijuana is necessary for their personal use. However, the police may still arrest someone for exceeding the state guidelines. Patients can't be prosecuted simply for exceeding the limits, however, they may still be arrested and have to defend themselves.
The SB 420 state guidelines have a statewide guideline for cultivation of 6 mature or 12 immature plants. (A qualified patient or primary caregiver may maintain no more than six mature or 12 immature marijuana plants per qualified patient). In order to avoid the hassle of possible arrest by police, it is advisable to follow the recommended guidelines. However, if you have been arrested for exceeding the guidelines, you have a defense, and should consult an East Bay criminal defense attorney to make sure your rights as a qualified patient are defended.
Plant and Growing Limits by Town
To make matters even more confusing, different localities have put into place their own limits on cultivating marijuana, limiting how much medical marijuana someone can grow, and where it can be grown. Many towns and cities here in Alameda County and Contra Costa County have enacted their own growing limits. Some localities have outright bans on outdoor marijuana cultivation.
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Concord: Concord city council has adopted an outdoor ban on marijuana cultivation.
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Martinez: Martinez city council has also voted to ban outdoor cultivation of medicinal marijuana.
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Moraga: Moraga has banned outdoor cultivation, and only allow indoor cultivation if it is not visible.
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San Pablo: San Pablo has passed an ordinance banning marijuana cultivation.
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Berkeley: In Berkeley, outdoor gardens that are observable are limited to 10 plants.
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Fremont: Fremont city council has voted to ban growth of medical marijuana outdoors, and it must be out of view from a public place if grown indoors.
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Oakland: In Oakland, indoor cultivation is limited to 72 plants, and the outdoor limit is 20 plants. Collective marijuana gardens are limited to three patients.
Marijuana Cultivation Defenses
Defenses will depend on the individual facts and circumstances of each case, and may depend on how much marijuana was involved, and if the defendant is a qualified patient or primary caregiver under the state's medical marijuana laws.
Being a qualified patient or primary caregiver can be an affirmative defense to many marijuana cultivation charges. It may also be a defense if the plants are grown on someone's property and they were unaware of the pot being grown. Charges can also be reduced to a charge of possession, or deferred through the diversion program. A lawyer with experience defending people charged with cultivation of marijuana can best evaluate an individual's case.
Experienced East Bay Attorney Representation:
If you are arrested for marijuana cultivation in Concord, Martinez, or San Pablo; or busted in Oakland, Fremont or Berkeley or anywhere else in Contra Costa County or Alameda County, Lynn Gorelick is familiar with the state and local marijuana laws. With more than 30 years of criminal law experience, Lynn Gorelick will fight to get the charges against you or a loved one reduced or completely dismissed.
