Marijuana Sales and Cultivation

A person accused of selling marijuana or concentrated cannabis needs the very best legal representation. Many such cases involve felony charges. The accused person faces the potential for an imprisonment sentence, large fines, and other serious consequences. Attorney Richard M. Oberto has expert knowledge of marijuana law and policy at the local, state, and federal levels. He been able to use that knowledge in numerous cases to achieve the best results for clients.

Medical Marijuana Defense

A person accused of marijuana crimes has the right under California law to present a defense based on the Compassionate Use Act and Medical Marijuana Program Act. The laws are discussed in greater detail on Mr. Oberto’s website page regarding Marijuana Possession. The accused has the initial burden to produce evidence showing that he was authorized under the statutes to possess or cultivate marijuana for medical use. Once the initial burden is met, the prosecution has the burden of proving beyond a reasonable doubt that the accused person was not authorized to possess or cultivate the marijuana for medical use.

Medical Marijuana and Local Regulations

In spite of the Compassionate Use Act and Medical Marijuana Program Act, some California counties and cities have used zoning and land use regulations to restrict marijuana cultivation. The California Supreme Court and California Courts of Appeal have explained that zoning and land use typically fall within the purview of local authority. Although cities and counties cannot criminalize activities that the state has specifically exempted from prosecution, they have been able to use zoning and land use regulations to burden, inconvenience, or ban marijuana cultivation. Some cities and counties have deemed marijuana cultivation, collectives, and cooperatives to be public nuisances. Some may seek to enforce criminal penalties for failure to abate a public nuisance after notice.

Federal Marijuana Law and Policy

Federal authorities are not bound by California's criminal law exemptions for people who possess or cultivate marijuana for an authorized medical use. The federal authorities have discretion to prosecute marijuana crimes that fall within their jurisdiction. They have jurisdiction over marijuana crimes that occur on federal property such as Yosemite National Park. Outside of federal property, they also have jurisdiction over criminal activity that falls within the purview of the Commerce Clause of the United States Constitution. The United States Supreme Court has interpreted the Commerce Clause broadly in marijuana cases. Federal authorities may have jurisdiction in a great many simple possession and cultivation cases even when the connection to interstate commerce seems remote or speculative.

Felony and Misdemeanor Offenses

Crimes related to sale and distribution of marijuana are defined according to the manner of sale or distribution and the amount of marijuana in question. The crimes are generally punishable as felonies, except that misdemeanor provisions apply in cases involving an amount of marijuana less than 28.5 grams.

Health and Safety Code section 11360 makes it a crime to engage in a variety of activities that involve selling or distributing marijuana. The proscribed activities include selling, transporting for sale, furnishing, administering, giving away, or importing marijuana. Section 11360 is charged as a felony, except that a misdemeanor provision applies where the suspect is accused of transporting for sale, giving away, or offering to transport for sale or give away not more than 28.5 grams. The misdemeanor provision does not apply to offenses involving concentrated cannabis. When charged as a felony, section 11360 carries a maximum imprisonment term of two, three, or four years or up to one year in the county jail. When charged as a misdemeanor, the maximum punishment is a fine of up to $100.

Health and Safety Code section 11359 defines the crime of possessing marijuana for sale. The crime is punishable as a felony and carries a maximum imprisonment term of 16 months or two or three years or up to one year in the county jail.

Health and Safety Code section 11358 defines crimes related to cultivating marijuana. Offenses may include not only cultivation, but also planting, drying, harvesting, or processing. Section 11358 carries a maximum imprisonment term of 16 months or two or three years or up to one year in the county jail.

Enhancements Allegations

Marijuana crimes are subject to potential enhancement allegations based on conduct or prior convictions. One example of an enhancement allegation based on conduct is where a person is accused of possessing a firearm in connection with the underlying crime. Enhancement allegations can lead to dramatic increases in potential punishments. A person should ensure he has experienced legal representation in marijuana cases.

Experienced Marijuana Defense

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

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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