Possession of Marijuana for Personal Use (Health & Safety Code § 11357)

Possession of marijuana for personal use is the unlawful possession – without a doctor's prescription or recommendation – of marijuana or concentrated cannabis (hash). Possession of marijuana for personal use law has different punishments based on the amount of marijuana possessed; whether it was possessed at a school by an adult or a minor; and whether the marijuana was common marijuana or concentrated cannabis.

Possession of marijuana for personal use is a misdemeanor regardless of the amount possessed or whether it was possessed at a school or not. Possession of marijuana for personal use in the form of concentrated cannabis, however, is a "wobbler" and can be charged as either a misdemeanor or a felony depending on such things as the facts of the case and the defendant's history.

A defendant charged with possession of marijuana for personal use may qualify for drug treatment, instead of state prison, through a Penal Code § 1000 Drug Diversion program or a Proposition 36 drug program. Some prosecutors and courts may also offer informal diversion programs in certain situations.

If you or someone you care about is facing a drug or marijuana charge, the criminal defense attorneys at the Weinrieb Law Firm can help explain the charges and properly defend against them. We can be reached twenty-four hours a day, seven days a week at (818) 933-6555.

Punishments For Possession Of Marijuana For Personal Use

If a defendant declines or does not qualify for drug diversion, or if they enter a drug diversion program but fail out or violate their probation, the following punishments may apply:

Possession of concentrated cannabis (hash) (H&S Code 11357(a)) – Possession for personal use of concentrated cannabis is a wobbler. If charged as a misdemeanor, it is punishable by imprisonment in the county jail for up to 1 year, a fine of up to $500, or both. If charged as a felony, it is punishable by 16 months, 2 or 3 years in state prison.

Possession for personal use of no more than 28.5 grams (1 oz.) ( H&S Code 11357(b)) Possession of less than 28.5 grams (1 ounce) of marijuana is an infraction and is not punishable by jail time, only a fine of no more than $100.

Possession for personal use of more than 28.5 grams (1 oz.) (H&S Code 11357(c)) Possession of more than 28.5 grams (1 ounce) of marijuana is a misdemeanor, punishable by up to 6 months in county jail, a fine of up to $500, or both. Note, however, that for defendants with three or more convictions under this section within two years of the current offense, drug diversion is mandatory.

Possession at a K-12 school by an adult 18 years old or older: no more than 28.5g grams (1 ounce) – Possession by an adult 18 years old or older, of no more than 28.5 grams of marijuana at a K-12 school is a misdemeanor punishable by up to 10 days in county jail, a fine of up to $500, or both.

Possession at a K-12 school by a minor: no more than 28.5 grams (1 ounce) – Possession by a minor of no more than 28,5 grams of marijuana at a K-12 school is a misdemeanor punishable as follows:

  • First offense: a fine of no more than $250 and completion of drug education classes.
  • Second or greater offense: a fine of not more than $500 and incarceration in a youth facility for not more than 10 days, or both.

Drug Treatment As An Alternative to Punishment

As an alternative to a possible jail sentence, a defendant charged with possession of marijuana for personal use may qualify for one of the following drug treatment programs.

Penal Code § 1000 Drug Diversion

Under Penal Code section 1000 Drug Diversion, the defendant pleads "guilty" to the possession of marijuana charge. Entry of judgment against the defendant on the guilty plea is then deferred (not entered by the court) while the defendant attends a qualifying drug treatment program. If the defendant successfully completes the program, and any other conditions imposed by the court, the case is then dismissed in its entirety (even though the defendant had previously entered a guilty plea).

To be eligible for Drug Diversion, the following requirements must be met:

  • Defendant has no prior convictions for any controlled substance offense
  • Defendant has not had probation or parole revoked in any prior case without later completing the probation or parole
  • Defendant has not been granted Drug Diversion in the previous 5 years
  • The Defendant has no felony convictions within the previous 5 Years
  • The current charges do not involve violence
  • The current charges do not include another drug violation charge that does not qualify for Drug Diversion (for example, Driving Under the Influence of Drugs)

Proposition 36

Under Proposition 36, the defendant pleads "guilty" to the possession of marijuana charge, is placed on probation, and must complete one year of drug treatment and 6 months of after-care. If the defendant successfully completes the rehabilitation program and any other terms of probation, the charges may then be dismissed by the court.

To be eligible for Proposition 36, the following requirements must be met:

  • The current charge is for non-violent drug possession for personal use
  • Defendant has no "violent" or "serious" felony convictions within the previous 5 years
  • Defendant is not convicted in the same case for any misdemeanor or felony that is not a non-violent drug possession charge
  • Defendant has not refused drug treatment as part of Proposition 36 probation
  • Defendant has not already participated at least twice in Proposition 36 or another drug treatment program AND the court determines that drug treatment is ineffective to treat the defendant

Defenses To Marijuana Possession

Potential defenses to a Marijuana Possession charge will depend on the facts of the case, but may include:

  • Lawful Possession of Medical Marijuana – Defendant's marijuana possession was lawful pursuant to California's Medical Marijuana Law (Proposition 215)
  • Lack of Possession – Defendant did not possess the marijuana. For example, Defendant was only present while other people used marijuana or Defendant only held the marijuana for use by another person.
  • Lack of Knowledge – Defendant was unaware that he possessed the marijuana. For example, another person placed the marijuana in Defendant's bedroom, vehicle or locker, etc.
  • Unlawful Search and Seizure – Law enforcement found the marijuana as part of an unlawful search or seizure of Defendant's person or premises under his control.

Contact Us

If you or someone you care about is facing criminal investigation or criminal charges of any type, please contact the criminal defense attorneys at the Weinrieb Law Firm. We can be reached twenty-four hours a day, seven days a week at (818) 933-6555, or through the confidential and secure email form on the firm's website at www.VWattorneys.com.

 

 

 

 

 

 

 

 

 

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