When the Field Research Council first asked voters about legalizing marijuana in 1969, only 13 percent of Californians supported such a measure. Twenty-eight years later, attitudes had changed rather significantly, as voters approved Proposition 215, the Medical Marijuana Law.
Today, by almost any measure, recreational marijuana legalization enjoys broad popular support. The legalization experience has been generally positive in Colorado, Washington State, Oregon, and Washington D.C., and despite some concerns regarding vehicle crashes and growing marijuana plants near schools, these is little reason to assume that the end of prohibition in the Golden State will be significantly different.
Although some laws are changing, some laws remain the same. In many situations, possessing and/or selling marijuana is still a crime under both state and federal law, and the fact that most law enforcement agencies actively opposed Proposition 64 means that these laws will be very aggressively enforced. At the Law Offices of Vikas Bajaj, APC, we are committed to the rights of San Diego residents, and specifically to their right to use and possess marijuana for personal reasons.
What Does Prop 64 Mean?
The new Section 11362.1 of the Health and Safety Code states that “Marijuana and marijuana products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.” That statement fairly sums up the criminal law element of Proposition 64. At its core, the measure is basically an amnesty provision for people with prior marijuana convictions and an immunization from certain forms of state and federal prosecution.
Proposition 64 proponents also hail legalization as a revenue-producing measure. However, 52 percent of drug arrests are for marijuana, and many of these arrests are for rather small amounts of pot. So, while there will be some additional tax money coming in, courts will lose substantial amounts of revenue, so the matter is probably a wash.
What is Legal Under Prop 64?
In a nutshell, Proposition 64 applies in situations that involve less than 28.5 grams of marijuana. That is about six-and-a-half teaspoons. Proposition 64 also allows individuals to cultivate up to six plants, as long as they remain either indoors or in a garden and are not visible from any public place, such as a sidewalk. Moreover, individuals may “process, transport, purchase, obtain, or give away” less than 28.5 grams of marijuana to persons over 21.
It is also legal to possess up to eight grams of concentrated marijuana, and it is legal to smoke marijuana inside private residences. That designation may or may not include common areas, like apartment courtyards, and private outdoor areas, like backyards.
As mentioned, there is also an amnesty provision. Prior convictions can be expunged, in most cases. Similarly, persons currently on probation or serving other sentences for marijuana possession under 28.5 grams can file motions to have their sentences reconsidered. Going forward, most marijuana convictions covered in Proposition 64 are automatically expunged every two years.
What is Illegal Under Prop 64?
California law does not affect federal law, so it is still a federal crime to possess even trace amounts of marijuana. Currently, the Department of Justice defers to state laws in this area and typically does not prosecute personal marijuana possession cases, but that approach is only an administrative policy that is subject to change.
Possession of marijuana over 28.5 grams is still illegal. Moreover, if the police find baggies, scales, cash, guns, or anything that could be related to transportation of marijuana, charges are normally upgraded to possession with intent to deliver. Specifically under Proposition 64, it is illegal to:
- Use marijuana in a public place,
- Smoke marijuana in a “No Smoking” area,
- Possess or use marijuana within 1,000 feet of a school or daycare, and
- Use marijuana while driving or operating any motor vehicle.
It is also illegal to use marijuana in a correctional facility or any establishment designated as a “drug-free workplace.”
What Are the New Penalties?
In addition to changing the underlying laws, Proposition 64 also modifies the punishments for these offenses. In most cases, Proposition 64 violations are “infractions” as opposed to criminal offenses. Some of the penalties are:
- Using in Public Place: This violation is an infraction punishable by a maximum $100 fine. If the offender is under 18, the court may also require a four-hour drug treatment program and ten hours of community service.
- Smoking in No Smoking Area: The fine goes up to $250, and the under-18 punishments go up to twenty hours community service in addition to four hours drug treatment. The same punishment applies to having an open container of marijuana within 1,000 feet of a school or daycare.
- Possession at School or Daycare: The first offense is a maximum $250 fine; any subsequent offense is a maximum $500 fine plus up to ten days in jail.
In many cases, it is also still illegal to manufacture cannabis with a “volatile solvent” as defined in 11362.3(d).
Can I Smoke Marijuana While I’m On Probation?
The answer probably depends on the type of probation. If on probation for DUI or almost any drug-related offense, ingesting marijuana is almost certainly a probation violation, because marijuana is still a controlled substance under both state and federal law. As for non-drug probations, the specific terms and conditions of probation in that particular case are controlling.
Courts must find a proper nexus (connection) between the offense conduct and the use of marijuana. In the same way that alcohol is prohibited in grants of probation in alcohol related offenses, such as DUI (and DUIs with injuries), it can be expected that a sentencing court must find an adequate nexus between the offense conduct and marijuana usage.