Marijuana in San Diego
Federal law classifies marijuana as a Schedule I hallucinogen drug and does not consider medical exemptions to the Controlled Substance Act. In California, possession, cultivation, and transportation of Marijuana is only legal for personal medical use. This means that if you are not a patient or a caregiver under California's Compassionate Use Act, you will be charged for possession, cultivation, and transportation of marijuana as a crime. In San Diego, marijuana crimes range in severity and penalties. Beginning with simple possession of less than 28.5 grams of marijuana, which is considered an infraction, the violation of which only carries a fine of $100. Ending with the chemical extraction of marijuana, which is considered a felony and carries up to 7 years in California state prison. Given the magnitude of the gap between marijuana offenses, it is very important that you understand how marijuana charges are broken down in California.
Proposition 215 Legalized Marijuana for Medical Use in California
The California Compassionate Use Act was passed to address the need for medical marijuana to alleviate patients suffering from the following serious medical conditions:
- Chronic Pain
- Severe Nausea
If you are a patient or a caregiver using marijuana for medical purposes, you have rights under Proposition 215. At Monder Law Group we are here to inform you of these rights and protect you from wrongful prosecution for possession, transportation and cultivation of marijuana. Patients and their primary caregivers are allowed to grow their own medicine so long as they have the approval or recommendation of a licensed physician. This means that marijuana for medical treatment prescribed by a California licensed physician will not incur criminal charges.
While you are not required to have one, whether you are the patient or the primary caregiver for the patient, it is strongly recommended that you obtain a medical marijuana identification card. Carrying a medical marijuana identification card would make your life easier because it will serve as proof if you are hassled by law enforcement. Moreover, if you are wrongly charged having a medical marijuana identification card can be used as an affirmative defense in your criminal case. If you would like to obtain a medical marijuana card, you can apply for one at the health department in the county where you reside. If you are the patient you must go in person and take a valid prescription from your physician. If you are the caregiver you must go with the patient because it must be the patient who applies for his or her caregiver's medical marijuana identification card.
Possession of Marijuana for Personal Use
Simple possession under Health and Safety Code Section 11357 is considered a misdemeanor offense. This charge considers 28.5 grams or less as personal use. Possession of concentrated cannabis is the most common marijuana possession charge in San Diego. Prosecutors will not typically file if there is less than a gram of marijuana on your person. However, they will file charges if there is less than a gram of hash on your person. This is because simple possession of hash is considered a wobbler offense that the prosecution has discretion to file as either a misdemeanor or a felony. This can be avoided if you qualify for Proposition 47. To qualify you must not have any prior serious or violent felony convictions or be a registered sex offender. Proposition 47 has changed the sentencing guidelines for possession charges for personal use. Basically, offenses that used to be considered wobblers will be reduced to straight misdemeanors. Since the passage of Proposition 47 it is unlikely that a charge for possession of concentrated cannabis will be considered a felony. Which means that there is always ways to earn a dismissal in your case by completing a diversion program, which is either a PC 1000 program or Prop 36 program. If you want more information about diversion programs in San Diego please check out the following link:
Possession of Marijuana With Intent to Sell
The biggest difference between possession and intent to sell is the amount of marijuana found on your person. Law enforcement considers anything less than 28.5 grams as a simple possession charge. However, if you are carrying anything more than this amount it is likely that you will be charged with intent to sell marijuana. Proposition 47 does not apply to possession of marijuana with intent to sell. Possession with intent to sell marijuana is a felony and carries serious penalties. Proof of intent to sell may be established by the following circumstantial evidence:
- Large quantities of marijuana
- Packaging, marijuana separated in baggies
- Measuring scales
- Number of visitors coming in and out of your home
- Length of visitors stay
Don't let the prosecution have the upper hand, contact an experienced criminal defense attorney as soon as you are arrested! At Monder Law group we know the best defense is a good offense and will immediately begin mitigating the circumstantial evidence against you.
Marijuana Possession Charge Expunged
If you have been convicted of a marijuana charge, then it is important to contact an experienced criminal attorney in San Diego that will file an expungement with the court where the conviction exists. Many of these cases will be dismissed from persistent negotiation in attempting to get you into a drug treatment program. Upon successful completion of the program, the court will be inclined to dismiss the case. However, when you do not complete the drug treatment program and the judge does not allow you to be re-assigned to the program, then the next best option is to expunge the conviction from your record. At Monder Law Group we have ample experience dealing with expungements and will be able to clear you criminal record.
Cultivation of Marijuana
Cultivation is another type of charge that is also considered a felony under Health and Safety Code 11358. People that are growing marijuana for their own cooperatives may be charged with a criminal offense even if you are a medical marijuana patient growing for your own personal use as well. You will always be given a diversion program under Penal Code 1000 or Proposition 36 as long as there is no intent to sell. It is important to hire an experienced criminal defense attorney that knows the ins and outs of how cooperatives work. It is important to explain to the prosecution that all marijuana is cultivated for the cooperative on a donation basis for all the patients.
Transportation of Marijuana
This is a more serious crime than simple possession of marijuana. This crime is considered a felony under Health and Safety Code 11360. However, the difference in these two charges is that the prosecution has to prove your intent to sell in a transportation charge. This means through text messages sent or received from your phone discussing money or circumstantial evidence of items that suggests transportation. This could be wrapped or concealed packages or bundles of marijuana. Anything that would lead a reasonable person to believe that the marijuana found could not be used for personal use. Often these charges are brought based on the findings of an ongoing sting operation conducted by the Drug Enforcement Administration or other local narcotic task forces.
Driving With Marijuana
- If you are driving around with marijuana, it is critical you have a valid doctor’s recommendation on your person along with a California identification card through the Department of Health Services.
- If you are delivering marijuana on behalf of a collective, then you need to appropriate documentation to show an officer that you are working.
- If you are the director of collective, you must check every patient’s recommendation every single time when delivering marijuana.
Most importantly, do not ever give a police officer consent to search and do not explain what it is that you are doing and how it is legal.
Driving Under the Influence of Marijuana
The vehicle code section that covers a Marijuana DUI is VC 23152(e). Getting a DUI while being under the influence of marijuana is more complicated than a simple DUI under the influence of alcohol which may cause vehicular manslaughter. This is because a different standardized test is conducted as well a different chemical test. Unlike in a breathe test where law enforcement is testing how many parts per million there is alcohol in each breathe; it is extremely difficult to determine a particular amount of THC in the bloodstream to establish impairment. Unlike alcohol, building up a tolerance or resistance to marijuana is a lot more common.
What Are Important Organizations to Learn About Marijuana Rights?
NORML (http://norml.org/) and LEAP (http://www.leap.cc/) are the two biggest organizations to learn about how your rights are protected as a medical marijuana patient and how law enforcement treats individuals with your conditions.
A lot of the information you will find does not provide immunity from arrest; however, there exists valid defenses to charges brought by a prosecuting authority. It is important to know that many prosecutors are not up to date on current issues arising out the medical marijuana movement here in San Diego and it is important to keep them updated by advocating on your behalf.
The State of California courts have held that a medical marijuana patient may possess an amount of marijuana consistent with the patient’s medical needs. People v. Wright (2006) 40 Cal.4th 97. The Compassionate Use Act clearly states the rights for all California residents to possess medical marijuana to benefit his or her conditions and the conditions of others (i.e. accounting for marijuana caregivers and marijuana cultivators).
Not all marijuana charges are created equal, if you are looking for medical marijuana defense in San Diego, please contact San Diego Marijuana Attorney Vik Monder at 619.405.0063 or visit www.monderlaw.com.
Contact San Diego Marijuana Criminal Defense Attorney Vik Monder for a FREE consultation today at: 619-405-0063