It’s legal, but not overly legal: Criminal defense attorneys answer 10 questions about weed

People Post is a space for opinion pieces, letters to the editor and guest submissions from members of the Long Beach community. The following is an op-ed submitted by Long Beach criminal defense attorneys Todd R. Means and Bailey K.F. Means, and does not necessarily reflect the views of the Long Beach Post.

Recreational marijuana has been legal in California since January of this year, but sales have only recently started in Long Beach. As criminal defense attorneys, it’s hard to go an entire week without having one of our clients, family members, friends, or just a random stranger in a bar ask a question about what exactly is (and is not) legal when it comes to weed. Here are the 10 most common questions we get:

Q: How much marijuana can I possess?

Proposition 64 passed in November 2016 and decriminalized a vast majority of marijuana offenses. The newly rewritten Health and Safety Code section 11362.1 permits adults 21 and older to possess up to 28.5 grams of non-concentrated cannabis (roughly one ounce). These forms of cannabis would include the old-school flower form of marijuana.  Adult users can possess up to 8 grams of concentrated cannabis (a little more than a quarter of an ounce). Concentrated cannabis is what is often called “wax,” and is also found in the increasingly popular vaporizer (or “vape”) cartridges.

Q: Are there any places where I can’t take my weed?

Although Prop. 64 allows you to possess weed, you can’t just take it anywhere. Specifically, you can’t take your weed with you to school or on school grounds. If you are over 18 and caught with marijuana at a school, you can be charged with a misdemeanor and sentenced to pay a maximum fine of $250 for a first offense. A second offense will make you eligible for up to ten days of county jail and a fine of $500.

The law also prohibits carrying an “open container” of marijuana in public (similar to alcohol laws). So, keep it closed up and tucked away if you’re in public.

Q: I bought too much weed. Can I sell some to my friend?

No. While Prop 64 has lessened the punishment for marijuana sales, it’s still illegal. Depending on to whom you sell, your previous criminal record, and how much you sell, marijuana sales is either a misdemeanor or a felony.

Q: Can I give weed to my friends as a gift?

It depends. If your friend is 21 or older, you can give him or her no more than 28.5 grams of weed. If your friend is between the ages of 18 and 21, giving him or her weed is a misdemeanor punishable by up to six months in county jail. If your friend is under 18, you’re in serious trouble; if anyone 18 or older gifts marijuana to a minor under 18 it is still a felony under California law.

Q: Can I smoke/ingest in public?

No. Use in public, via any means of ingestion, is still illegal, and can result in a fine.

Q: I was convicted of a marijuana offense before Prop. 64 passed. What are my options?

Prop. 64 specifically outlines the process for seeking resentencing or dismissal of a previous conviction. The California Judicial Council provides a form that you may file with the court of conviction in order to begin the petition process: form CR-400 can be found on their website.

If you were convicted of a marijuana possession offense that is no longer considered illegal, you can petition the court for dismissal. If you were convicted of a marijuana offense that was previously a felony but is now a misdemeanor, you are entitled to seek resentencing/reclassification from the court of conviction. The same is true if you were convicted of a marijuana offense that was previously a misdemeanor but is now an infraction. However, each of these processes must be initiated by the filing of a petition/application – the court does not have a duty to automatically or unilaterally resentence or dismiss any previous conviction.

Q: Is there a limit to the amount of marijuana that can be in your system while driving?

Most people are familiar that the legal limit for blood alcohol content in California is .08 percent. California has yet to pass what is called a “per se limit” when it comes to marijuana. That said, you can still be prosecuted for driving under the influence of marijuana if your “mental or physical capability are so impaired” that you are “no longer able to drive with the caution of a sober person, using ordinary care, under similar circumstances.” Generally speaking, this needs to be proven through evidence of your driving, your physical appearance, any testing (such as a blood test) that was conducted, and any statements you made to law enforcement.

As with alcohol, if you have consumed marijuana in any form, you should have a designated driver or get an Uber/Lyft/taxi.

Q: How much marijuana can I grow?

You can grow up to six plants for personal use. However, those plants must be (1) grown in your private residence; (2) kept in a locked place; and (3) not open to the public view. If you violate any of these three rules, you can be charged with an infraction and fined up to $250.

Keep in mind that these three rules apply to the possession, planting, cultivation, drying, and processing of marijuana plants. Again, the sale of any marijuana you grow is still prohibited.

Q: What are my rights if I am stopped by an officer?

Stop and seizure law is vast, nuanced, and layered. Here are some general rules that apply.

A stop: an officer may stop you if he or she has reasonable suspicion that you have engaged in illegal conduct. This is true in all instances, not just those involving marijuana. Previously, possession of marijuana without a medical recommendation was considered illegal conduct, and therefore could be used as a basis to detain someone. This is no longer true, so long as you are legally possessing marijuana (i.e. you are over 21 years old, not carrying in a prohibited location, etc.).

Tip: If you are carrying marijuana in public, ensure it is in a closed container, don’t ingest it in public, and don’t wander onto any prohibited premises, like a school or some government buildings.

A search of your person: an officer may pat search you upon stopping you if he or she has reasonable suspicion to believe that you are armed and dangerous. An officer cannot search you based upon the mere belief, or even knowledge, that you are in possession of marijuana. However, an officer is always entitled to ask for your consent to pat you down or search you. You always have the right to refuse a search assuming you are not on probation or parole and refusing a search may not be used against you.

Tip: If you are stopped by an officer, you are not required to inform him or her that you are in possession of marijuana (yes, even if they ask). You are not required to consent to a search.

A search of your car: Generally, an officer may search your car if he or she has probable cause to believe that contraband is present. Previously, the smell of marijuana was a legal basis for an officer to search a vehicle upon a stop. Prop 64 attempted to change this and altered the law to state that the legal possession of marijuana and/or paraphernalia is no longer a legal basis for search or seizure. However, a California Court of Appeals recently ruled that this language is essentially toothless and ignored the plain language of the statute in finding that the smell of marijuana may still be a legal basis for search of a vehicle in some circumstances.

Tip: If you are transporting legally purchased marijuana in your vehicle, always keep it in a sealed container in the trunk. You are not required to inform an officer that you are in possession of marijuana (yes, even if they ask). You are not required to consent to a search of your vehicle.

If you’re stopped by an officer: Prop 64 has in many ways expanded your rights to remain free of search and seizure. However, there are a few important things to remember: (1) you cannot be stopped or searched merely based on the legal possession of marijuana;  (2) some conduct involving marijuana remains illegal and can still be used as a basis to stop and search you; (3) always keep marijuana in your vehicle in a closed container, and in the trunk (much like alcohol); (4) you are never required to answer questions about what you may have in your possession, or consent to a search of your person or vehicle (unless you have probation or parole terms modifying you rights).

Q: What about the feds?

At this point, most people are well aware that the federal law differs from the state law regarding marijuana, and it’s very much a point of contention. The federal government only has jurisdiction over certain types of conduct. For purposes of conduct involving marijuana, the feds can regulate activity if it affects “interstate commerce;” essentially, if your conduct reasonably impacts anything outside of California. Unfortunately, there are some terrible legal precedents regarding medical marijuana and its effect on interstate commerce.

  • Many dispensaries do not accept credit cards as payment. Arguably, the mere use of a credit/debit card could implicate federal jurisdiction, whereas paying in cash may not.
  • Never take marijuana across state lines, even if marijuana is legal in the state to which you are travelling. For example, even though recreational marijuana is legal in Nevada, transporting marijuana across the state line subjects you to federal jurisdiction.
  • Never take marijuana to any federal government property — this includes somewhere as innocuous as the Post Office. Other common federal properties include federal courthouses and agency buildings, such as the Social Security Administration.
  • Never take marijuana to the airport. It may seem unlikely that someone will recognize a small vape cartridge or ambiguous edible in your carry-on or checked baggage, but the negative consequences (potential federal detention and prosecution) far outweigh any benefit.

Note: For purposes of this discussion, it is assumed that you are 21 or older unless specified otherwise. The laws change considerably if you are younger than 21. You should consult a licensed attorney if you have questions about a specific case.

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