Marijuana Possession

Attorney Richard M. Oberto aggressively defends clients in cases involving allegations of marijuana and concentrated cannabis possession. He has expert knowledge of the local, state, and federal rules pertaining to marijuana. He understands how the rulemaking at different levels of government affects the context of a marijuana prosecution.

Medical Marijuana

California laws have exempted authorized medical marijuana users and their primary caregivers from state criminal prosecution for certain activities related to authorized medical marijuana use. The laws include the Compassionate Use Act and Medical Marijuana Program Act.

Compassionate Use Act

Under the Compassionate Use Act, a qualified patient and his primary caregiver are exempt from state prosecution for activities related to possessing and cultivating marijuana for the patient’s authorized medical use. The amount of marijuana possessed or cultivated must have been reasonably related to the patient’s current medical need. The law defined a “qualified patient” as someone who had a physician's approval or recommendation to use marijuana. It defined a “primary caregiver” as someone who has “consistently” undertaken general caregiving functions with respect to the patient's housing, health, or safety.

Medical Marijuana Program Act

Under the Medical Marijuana Program Act, a qualified patient and his primary caregiver are exempt from state prosecution arising from the collective or cooperative cultivation of marijuana for medical use. The collective or cooperative activity must be within the State of California and must not be for profit. Some cases present complex issues with respect to membership, accounting, and financial records.

Federal and Local Law

California’s protections for medical marijuana do not extend to federal law and local city and county regulations. Federal authorities are not bound by the Compassionate Use Act and Medical Marijuana Program Act. Cities and counties have authority to enforce zoning and land use regulations that restrict, inconvenience, or ban marijuana cultivation. The authority of cities and counties does not permit them to criminalize activity that is specifically exempted from prosecution under state law.

Health and Safety Code section 11357

Crimes related to simple marijuana possession under California law are prosecuted under Health and Safety Code section 11357. The section defines four types of offenses. The offenses are organized according to the quantity and type of marijuana (e.g. marijuana and concentrated cannabis). One section specifically addresses the issue of marijuana on school grounds.

Health and Safety Code section 11357(c) makes it a misdemeanor crime to possess more than 28.5 grams of marijuana. The crime is punishable by up to six months in jail and a fine of up to $500.

Possession of not more than 28.5 grams of marijuana is treated as an infraction under California law, except where Health and Safety Code section 11357(d) applies. The infraction is punishable by a fine of up to $100. Section 11357(d) makes it a misdemeanor crime for an adult age 18 or older to possess marijuana, not more than 28.5 grams, on K-12 school grounds. The school must have been open for classes or school-related programs at the time of the offense. The crime is punishable by up to ten days in jail and a fine of up to $500.

Health and Safety Code section 11357(a) makes it a crime to possess concentrated cannabis. The crime is a misdemeanor punishable by up to one year in jail and a fine of up to $500, although an important exception applies when an accused person has a certain type of criminal record. Section 11357(a) may be charged as a felony when a person has a prior conviction for a serious or violent felony under California's Three Strikes Law or when a person has a prior conviction for an offense that requires sex offender registration under Penal Code section 290(c).

The Prosecution’s Burden of Proof

The prosecution has the burden of proving a marijuana or concentrated cannabis charge beyond a reasonable doubt. The elements that the prosecution must prove in a possession case include (1) unlawful possession, (2) knowledge that the substance was present, (3) knowledge of the substance's nature and character as marijuana or concentrated cannabis, and (4) a usable amount of the substance.

Knowledgeable Legal Representation

The state and federal governments continue to treat possession of marijuana and concentrated cannabis as serious crimes. An accused person should ensure he has the best legal representation.

Mr. Oberto welcomes people to contact him 24/7 at (559) 221-2557 to request an initial consultation. Se habla Espanol.

People also may contact Mr. Oberto to request an initial consultation using the contact form available on this website. Please do not use the contact form to write down sensitive information. Information communicated over the internet, including through this website, may not be considered confidential or privileged.

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