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Marijuana Possession

Bart Kaspero Law > Drug Charges  > California Drug Laws > Marijuana Possession

11357(c) – Marijuana Possession (More than 1 Oz.)

 

Possessing marijuana (cannabis) without a prescription is a violation of the Health & Safety code in California.  Since the passing of the Compassionate Use Act (CUA) however, many licensed prescription holders may find themselves possessing more than what is allowed.  Therefore, there are two types of offenses you can be facing under California’s drug laws for marijuana possession.

 

First, you may be without a physician’s prescription (or called a “recommendation”) and found possessing marijuana illegally.  In this situation, possession becomes the primary issue of whether or not the prosecution can successfully convict you, so you’ll want an experienced drug crimes lawyer on your side.

 

Second, if you are in fact a license holder for medical marijuana (MMJ), then the more important issue is whether or not you exceed the allowed amount.

 

Finally, whether or not you are a legally prescribed patient, there is also the possibility that you could be violating one of two separate laws if you are impaired.  The first is the classic DUI (Driving under the influence).  The second offense is a lesser known “being under the influence of a controlled substance” (Health and Safety Code 11550).

 

Possessing Marijuana Without a Prescription

The facts supporting the concept of possession becomes the primary issue when it comes to non-prescribed defendants.  Therefore, defending such a case becomes important to investigate the manner in which the discovery of the marijuana was accomplished.

 

For example, many police detectives rely on exigent circumstances to enter someone’s home without a warrant.  In the case of officers who made such an entry where they believed the only crime the defendant was committed was simply “possessing” marijuana, the entry was without merit and ruled illegal.  People v. Hua (2008) 70 Cal.Rptr.3d 559.

 

In a similar transporting scenario, some people can find themselves “possessing” marijuana when it was not their drugs to begin with.  This is called aider and abettor liability.

 

Therefore, someone who agrees to drive another person that has complete possession of marijuana will be considered aiding and abetting the transportation of the drugs even though they don’t technically possess it.  People v. Busch (2010) 113 Cal.Rptr.3d 683.  The court in People v. Busch reasoned:

 

“A person ‘aids and abets’ the commission of a crime when he (1) with knowledge of the unlawful purpose of the perpetrator, (2) and with the intent or purpose of committing, facilitating, or encouraging commission of the crime, (3) by act or advice aids, promotes, encourages or instigates the commission of the crime.”

 

As you can see, there are many situations where someone can be possessing and not possessing the drug depending on the facts of the case and the manner in which the arrest or investigation took place.

 

Possessing Marijuana With a Prescription

Unfortunately, some card-holders believe they will get some leeway if they are caught with more than what they’re supposed to have.  There is a lot of literature about the Compassionate Use Act and how it should be read liberally to support the patient at the end of the day.  There may be some truth to it, but depending on the intentions of some agencies that may not help the one who is charged.

 

It is true however that what is considered a “reasonable amount” of marijuana that is possessed by a qualified user is a flexible standard based on the individual user.  But it is not without reasonable limits that consider quantity.  Littlefield v. County of Humboldt (2013) 159 Cal.Rptr.3d 731.

 

What the Compassionate Use Act does in the criminal defense world is provide an affirmative defense to the crimes of possession and cultivation.  People v. Dowl (2013) 161 Cal.Rptr.3d 103.

 

Therefore, the CUA is a defense that is limited only to caregivers and patients.  City of Claremont (2009) 100 Cal.Rptr.3d 1.  And the way in which the affirmative defense works is that for crimes involving possession or cultivating, the defense may introduce at trial evidence that raises a reasonable doubt as to the facts underlying the Act as a defense.  People v. Dowl (2013) 161 Cal.Rptr.3d 103.

 

Another possibility that befalls some licensee’s is exceeding the cultivation that is allowed or distributing the medical marijuana without authority.  To combat such charges, one must investigate whether or not a legal cooperative or collective was operating at the time of the investigation and alleged offense.