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Know Your Reefer Laws


Now that Proposition 64 passed in the last election, people of San Diego still have questions. Proposition 64 went into effect on November 9, 2016, legalizing personal possession and home cultivation. In the spirit of 4/20 Stark & D’Ambrosio is here to help shed some light on your questions regarding the current California marijuana laws.


How Much Weed Can I Have?

You may possess, process, transport, purchase, obtain, or give away no more than 28.5 grams of marijuana not in the form of concentrated cannabis, more commonly referred to as edibles. If in the form of edibles, the limit is 8 grams.


Can I Buy it?

Not yet. There aren’t any shops in California where you can buy recreational marijuana. Dispensaries may not sell to the general public until the state works out all the kinks of taxing and licensing. You still need a medical marijuana card to make purchases at dispensaries. Under the Health and Safety Code it is not a violation of state or local law for persons 21 years or older to purchase or obtain up to 28.5 grams of marijuana or 8 grams in edibles. Licensing authorities must begin issuing licenses to businesses by January 1, 2018 and once they do so you should then be able to purchase marijuana without a medical marijuana ID card.


Can I Smoke it?

Yes, but not in public. You can smoke marijuana in the privacy of your own home or at a friend’s house. Keep in mind landlords can still prohibit tenants from smoking marijuana in the same manner they can prohibit tenants from smoking cigarettes within the common area and interior of their rental property.

The California Health & Safety Code 11357 HS Possession of Marijuana sets forth the rules of personal use of marijuana.

  • You cannot smoke or ingest marijuana: (1) in any public place; or (2) in a location where smoking tobacco is prohibited;
  • You cannot smoke marijuana or marijuana products: (1) within 1,000 feet of a school, day care center, or youth center while children are present, except in or upon the grounds of a private residence (only if such smoking is not detectable by others);
  • You may not smoke or ingest marijuana while driving, operating a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.
  • You also may not smoke or ingest marijuana products while riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation except as permitted on them in accordance to Business and Professions Code and while no persons under the age or 21 years are present.


Can I Grow it?

Yes, you can legally grow up to 6 plants on your premises. You may plant, cultivate, harvest, dry or process not more than six living marijuana plants within a single private residence that is fully enclosed and secure. Private residence meaning a house, an apartment unit, a mobile home, or similar dwelling. Plants and the marijuana produced by those plants, in excess of 28.5 grams, must be kept in a locked space, and not be visible by normal unaided vision from a public place.


Can I sell it?  

Nope! Not unless you’re a business with a license from the state. The sale and subsequent taxation of recreational marijuana will not go into effect until January 1, 2018, so be patient! If you are feeling generous, you can give it away. Under the Health and Safety Code it is not a violation of state or local law for persons 21 years or older to give away to other people 21 years or older without any compensation less than 28.5 grams of marijuana or 8 grams in the form of concentrated cannabis. Businesses looking to sell marijuana will need to acquire a state license to sell marijuana for recreational use. Local governments could also require them to obtain a local license.

According to the San Diego Union Tribune San Diego is the only city in the county that has indicated that it intends to allow the sale of recreational marijuana and has extended its temporary moratorium on recreational marijuana dispensaries until December. It will be immediately lifted when the city adopts regulations, which is expected to happen quickly. Dispensaries along the coast may also have to wait for Coastal Commission approval, but city officials said that is expected by October.


What if I break the rules?

If you are under 21 and possess marijuana or concentrated cannabis, the penalty is drug counseling and community service along with a fine of up to $100.

If you’re 21 and older but you possess more than 28.5 grams of marijuana or more than 8 grams of concentrated cannabis it is a misdemeanor and punishable by up to 6 months in county jail and a fine up to $500. If you’re under 18 you will be subject to drug counseling and community service.

If you possess marijuana or concentrated cannabis on the grounds of a K-12 school, it is a misdemeanor that carries a fine up to $250 for first offense

If you grow more than 6 marijuana plants it is a misdemeanor and you can face up to 6 months in county jail and/or a fine of up to $500. It can also be charged as a felony for people with serious violent felonies on their record, registered sex offenders, and defendants who have 2 or more prior convictions for cultivating more than 6 marijuana plants.

If you sell marijuana without a license, it is a misdemeanor punishable by up to 6 months in county jail and/or a fine of up to $1,000. For defendants under 18, it is an infraction. It is also a felony if you have a prior conviction of a particularly serious violent felony, if you have 2 or more prior convictions of sale/transportation of marijuana, or if you knowingly sell or attempt to sell marijuana to someone under 18.


Make Sure You Know Your Rights

Marijuana and marijuana products involved in any way with conduct deemed lawful are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest. So if you are following the rules, law enforcement may not detain, search, or arrest you. They also may not confiscate your marijuana or marijuana products.

It should be noted that although California mat allow you to use marijuana both recreationally and for medical purpose, federal law does not.


To help understand the nuances of the new California marijuana laws the criminal law defense attorneys at Stark & D’Ambrosio, LLP can help.


Applicable Statutes

Control, Regulate, and Tax Adult Use of Marijuana Act (known as “Proposition 64” on the November 2016 ballot). Cal. Health & Safety Code §§ 11018.1 to 11018.2; § 11018.5; §§ 11357 to 11360; § 11361.1; § 11361.5; § 11361.8; §§ 11362.1 to 11362.45; § 11362.712; § 11362.713; § 11362.755; § 11362.84; § 11362.85; Cal. Business & Professions Code §§ 26000 to 26211; Cal. Labor Code § 147.6; Cal. Water Code § 13276; Cal. Revenue & Taxation Code §§ 34010 to 34021.5; Cal. Food & Agricultural Code § 81000; § 81006; § 81008; § 81010


These materials have been prepared by Stark & D’Ambrosio for informational purposes only and are not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.