Possession of Marijuana: California Laws & Penalties

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When California citizens voted to legalize the personal use of marijuana in 2016, the state granted people new rights regarding the substance. While the Golden State now has some of the most permissive marijuana laws in the country, the possession of marijuana is not legal in all cases. Anyone planning on selling, buying or using marijuana in California should learn the ins and outs of the state's laws.

Adult Use of Marijuana Act (AUMA) Basics

California voters approved Proposition 64, also known as the AUMA, in November of 2016. The new law has many nuances, but three main objectives:

  1. Allow people over the age of 21 to possess up to one ounce of marijuana and cultivate plants for personal use.
  2. Reduce penalties for marijuana-related offenses, including for people who were already convicted.
  3. Set up a regulatory system for the taxation, production, manufacturing and sale of marijuana.

While the AUMA allows many people to possess and use marijuana, it also sets up strict rules regarding who can use the substance, how much people can possess, where they can use it and more.

Medical Marijuana for All Ages

Long before the AUMA legalized personal possession of marijuana in California, the state allowed people with prescriptions to use the substance. The AUMA does not affect people with marijuana prescriptions.

As such, people of any age can use and possess marijuana with a prescription. Medical marijuana laws in California also do not set exact limits on how much a person with a prescription can possess or grow. Instead, the law states that the amount must be reasonable and an amount that people need to treat their condition.

Penalties for Possessing Too Much Marijuana in California

Without a prescription, adults 21 or over are allowed to possess up to one ounce of marijuana or eight grams of cannabis concentrate. Exceptions are made for businesses owners who get the proper licenses and adhere to all regulations regarding selling marijuana.

For people who are 18 and over, possessing more than the allotted amount of marijuana is a misdemeanor offense. Even though individuals between 18 and 21 should have no marijuana, they are treated the same as those over 21 when it comes to having more than one ounce. People who are convicted face up to six months in county jail and/or a fine of up to $500. Minors who are found in possession of more than the allotted amount of marijuana may be sentenced to drug counseling and/or community service.

Where Can People Use Marijuana in California?

Although the possession of marijuana is legal in California, people may not use the substance in public places, unless otherwise designated. This includes ingesting edible cannabis, smoking marijuana and using vaping devices. The punishment for using marijuana in a public place is a fine of up to $100.

There are also laws regarding where users can bring their cannabis and marijuana, even if they do not use it there. The possession of marijuana is illegal at daycare centers, schools and youth centers anytime when children are present. Adult defendants face a misdemeanor and a fine of up to $250 for the first infraction of this regulation. Minors who possess marijuana on school grounds may be charged with an infraction, with punishments of drug counseling and community service.

Open Container Laws for Marijuana

California Vehicle Code 23222(b) VC addresses the possession of marijuana in vehicles, including cars, trucks, airplanes and boats. While adults over the age of 21 can possess up to 1 ounce of marijuana in their vehicles, they must abide by the same open container policies as they would with alcohol.

Marijuana must be in a sealed container while it is in a vehicle. Some drivers choose to lock loose marijuana in the trunk, but the law does not make an exception for substances in the trunk. However, people in that circumstance may have a strong case that they were not using the substance while driving.

Although the open container laws are similar for both marijuana and alcohol, they carry different penalties. Possessing an open container of marijuana in a vehicle is an infraction with a maximum fine of $100. In contrast, someone driving with an open container of alcohol and minors in the car faces up to six months in jail and/or a fine of $1,000.

Driving Under the Influence (DUI) of Marijuana

DUI of marijuana remains illegal across the United States, including in California. However, there is no "legal limit" like there is with alcohol since there is no equivalent of a breathalyzer for marijuana. As such, prosecutors have less evidence than they often do in drunk driving cases, making it harder to convict someone of DUI of marijuana.

Possible Marijuana DUI Penalties

When someone is convicted of DUI of marijuana, the person faces up to six months in jail, a fine between $390 and $1,000, up to nine months in DUI school and up to 10 months of a suspended license on the first offense. The penalties get more severe with every additional offense. With a second conviction, a person faces up to one year in jail, $1,000 fine, 30 months in DUI school and/or two years of a suspended license.

When a DUI of marijuana causes injury or the person is charged with a felony, the defendant faces more severe sentencing, even on the first offense. With a misdemeanor DUI with injury, a judge can sentence a convicted person up to one year in jail, a $5,000 fine, 30 months of DUI school and three years of a revoked license.

People who are convicted of felony DUI may spend up to three years in state prison, pay up to $1,000 in fines, attend DUI school for 30 months and have their licenses revoked for four years. In the most serious cases, someone can be convicted of felony DUI with injury. These defendants face up to 16 years in prison, $5,000 in fines, restitution paid to victims, 30 months of DUI school and five years of a revoked license.

Cultivating Marijuana Plants in California

California Health and Safety Code 11358 HS gives all adults over the age of 21 the right to grow up to six marijuana plants for personal use. People with marijuana prescriptions can grow more plants, but only enough for personal use. In most cases, the plants must be grown indoors, though some areas of California allow outdoor marijuana cultivation. In all cases, marijuana plants must be grown in secure places away from children.

People under the age of 18 face an infraction for growing any amount of marijuana. Judges may sentence such defendants to drug counseling and/or community service. People between the ages of 18 and 21 also face an infraction with a fine of up to $100.

Most people over the age of 21 who cultivate more than six plants face a misdemeanor punishable by a fine up to $500 and/or six months in county jail. Law enforcement may charge people with a felony for growing more than six plants if the defendant:

  • Is on the registry of sex offenders.
  • Has violent felony convictions.
  • Violates California environmental policies in the process of cultivating the plants.
  • Has at least two previous convictions of growing more than the allotted amount of marijuana plants.

These felony charges carry sentences of up to three years in county jail and/or $10,000 in fines.

Permits Needed to Sell Marijuana

People who want to use marijuana with their friends are allowed to do so under California law. However, they must not possess more than the legal limit, partake in a public space or share with anyone under the age of 21. Selling marijuana, rather than sharing, is illegal without specific licenses.

To qualify as a legal marijuana seller in California, businesspeople must first register with their local officials, either county or city. If the local jurisdiction allows a marijuana business to open in that area, the business person must then obtain a license with the state. When the business opens, it must pay all applicable taxes and operate within state laws.

Federal Laws Against Marijuana Possession

The United States federal government first outlawed the use and distribution of marijuana in the 1930s. While many states have legalized marijuana in the decades since, the substance remains a Schedule I drug under the Controlled Substances Act (CSA). The difference in federal and state laws causes some confusion for people in California.

Marijuana laws in California are impacted by jurisdictions and their enforcement policies. State and local officials arrest people for crimes that are against the law in their jurisdictions. Therefore, these law enforcement officers do not arrest people in California who adhere to the state's marijuana laws. However, federal law enforcement agents have broader jurisdiction and different enforcement policies.

Federal Marijuana Jurisdiction and Enforcement

Federal law enforcement officials, such as agents for the Drug Enforcement Agency, must follow federal laws and policies. Since marijuana is illegal in federal law, federal law enforcement agents can still arrest anyone who grows, manufactures, transports, sells or uses marijuana in California.

While marijuana has remained illegal for many decades, how strictly agencies enforce these rules change. Under the Obama administration, federal law enforcement agents were meant to de-prioritize arrests for marijuana. The Trump administration has since reversed that policy. Because policies can change rapidly and enforcement is up to each agency, California marijuana users and sellers take on the risk of prosecution.

In order to avoid federal prosecution for marijuana that is legal in California, users often avoid bringing the substance to federally controlled land. This includes national parks and federal agency buildings. Furthermore, users should never transport marijuana across state lines, even to other states that have legalized cannabis.

Federal Penalties for Marijuana Possession

Possession of any amount of marijuana for personal use carries a maximum sentence of one year of incarceration and up to $1,000 in fines for the first offense. On the second offense, the penalty is a minimum of 15 days in jail with a maximum of two years, as well as a $2,500 fine.

The third time someone is convicted of possession of marijuana, law enforcement can charge the individual with either a misdemeanor or a felony. The minimum sentence for a third charge is 90 days in jail. At most, people in this situation face three years in prison and a $5,000 fine. Gifting someone a small amount of marijuana carries the same penalties as possession.

The punishment for selling marijuana varies depending on the amount of marijuana sold. Selling under 50 kilograms carries a maximum sentence of five years in prison and a $250,000 fine. On the other end of the spectrum, selling more than 1,000 kilograms has a maximum sentence of life in prison and a fine of one million dollars. These penalties are doubled if the offender sells within 1,000 feet of a school.

Risk of Deportation for Conviction of a Marijuana Crime

Furthermore, immigrants who have not earned citizenship take on additional risk when using marijuana in California. Depending on their legal status, such people could face deportation for any federal marijuana crime.

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About the Author

Mackenzie Maxwell has always been interested in law, working with legal issues since 2010. She served in Congress for some time, as part of the communications team for Silvestre Reyes and helped constituents understand the laws on the House floor. She stayed active in local politics to understand the laws that govern her area. As a writer, Mackenzie has worked with several lawyers to create thoughtful, helpful content.