Health and Safety Code §11357(a)
URGENT LEGAL UPDATE: For anyone who has been arrested, charged, or plead guilty for possessing concentrated cannabis, you may be eligible for a reduction or dismissal depending on your circumstances. To Remove your Marijuana Charge from your Criminal Record… READ MORE
This is a very popular, and potent, form of cannabis and goes by many names. Most acceptably referred to as “concentrate”, the extracted resin from the cannabis plant can be consumed in many different ways; often providing ease of use for patients of medicinal marijuana. Unfortunately, one can still be prosecuted via California’s drug laws for possessing it without a valid defense to the charge.
Concentrates come in so many forms, they are often referred to as the type they end up looking like: “Wax”, “BHO”, “Shatter”, “Dabs”, “Golden Dabs”. What makes possessing any of these forms of concentrate is that the argument can be made that the smallest amount can be argued as being a “usable amount”. But a more specialized defense would not depend on this element of the charge. The reason why is further down below.
Under the Compassionate Use Act, hashish or “concentrated cannabis” were included within the meaning of the law when it was passed in 1996. 86 Cal. Op. Att’y Gen. 180, 194 (2003). However it is still the duty and burden of the person charged to produce sufficient evidence to raise a reasonable double that possessing cannabis was lawful. People v. Mower (2002) 28 Cal.4th 457, 460.
One issue that often comes up in these cases is whether or not a physician “recommended” or “approved” medicinal marijuana use for the patient. The California Court of Appeal ruled on several cases in 2003 primarily regarding what Superior Courts must do when this issue arises before a jury.
More recently, a unanimous three-justice panel in the 3rd District Court of Appeal ruled that concentrated cannabis was covered under CUA.
Depending on whether the case is filed as a misdemeanor or a felony, the punishment is similar to simple possession of marijuana and other controlled substances.
If charged as a felony, you can be facing up to three (3) years in state prison or up to one year in jail depending on your criminal background or the circumstances of your case (facts of the case). This will depend on whether or not someone qualifies or is disqualified by the recent changes made under Proposition 47.
If charged as a misdemeanor, you can be punished up to one (1) year in local county jail.
Whether or not someone is charged with a felony or misdemeanor however, there is the possibility of being eligible for drug rehabilitation program that will preserve your arrest history and minimize the damage of your arrest.
In order to be arrested for, charged, or convicted for this offense, the evidence presented by law enforcement and the prosecution must establish four primary elements. People v. Palaschak (1995) 9 Cal.4th 1236. First, the defendant must have exercised control over concentrated cannabis. Second, the defendant must have known of its presence (wherever the cannabis was found). Third, the defendant had to know it to be cannabis in a concentrated form. And finally, the concentrated cannabis had to have been a usable amount. People v. Rubacalba (1993) 6 Cal.4th 62, 65-67.
Drug offenses could be considered as some of the most forgiving criminal charges in that the circumstances of a particular person could mean that incarceration is not the preferred method of punishment. Instead, for drug possession offenses such as Wax, BGO, Shatter, Crumble, and Dabs, a well-strategized case could result in obtaining rehabilitation in the form of organized drug programs rather than jail. To determine whether or not you are eligible for such treatment will depend on several important factors. Discussing your case with a qualified drug lawyer is a good start and highly recommended.
The highly volatile world of medicinal marijuana changes rapidly and so do the agencies that prosecute its possession. Make sure to get an opinion from an experienced drug attorney that can point you in the right direction.