Dan Koukol : Sacramento Criminal Attorney
(530) 823-5400
Call For Free Confidential Consultation


Federal Marijuana Law and California Medical Marijuana Laws

Marijuana law is another example of why you need an attorney who practices in both federal and California courts.

Federal Marijuana law trumps California medical marijuana laws. According to the United States Supreme Court, in Gonzales v. Raich (2005), the federal government can continue arresting and prosecuting patients who are using marijuana legally under California law. However Gonzales v. Raich did not overturn state medical marijuana laws, including California’s Compassionate Use Act of 1996.

Under Federal Law, Title 21 United States Code Section 844, simple possession of marijuana is illegal, with a maximum possible penalty of up to one year in federal prison, and a mandatory $1,000 fine. With a prior, there is 15 day mandatory minimum sentence and $2,500 mandatory fine for simple possession! However simple possession of marijuana misdemeanor federal prosecutions are usually limited to arrests on federal land such as national parks and military bases, at least in California. The bottom line is that state law cannot stop a federal marijuana prosecution even for a misdemeanor.

Also under federal law, 1,000 or more marijuana plants (or 1,000 or more kilos of a detectable amount) brings a ten year mandatory minimum sentence (20 years with one prior and life with two priors); 100 or more marijuana plants (or 100 kilograms or more of a detectable amount) results in a five year mandatory minimum sentence (ten years with one prior). In the case of less than 50 kilograms of marijuana, except in the case of 50 or more marijuana plants, regardless of weight, the maximum sentence is five years in federal prison under 21 U.S.C. § 841. Again, state law provides no defense to federal marijuana charges.

However California marijuana laws such as the Compassionate Use Act can still support a defense to California state marijuana charges depending upon the facts and circumstances of the case. The bottom line with California marijuana law is that you are not allowed to profit financially from your compassionate care, although there might be a little wiggle room regarding “profit.” So even though the feds could prosecute you, California Compassionate Use Act of 1996, Proposition 215, Health and Safety Code Section 11362.5 still allow the use and legal access to marijuana when recommended by a physician. A patient, or a patient’s primary care giver, can possess, transport and grow marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.

Specifically, a qualified patient or caregiver may possess no more than eight ounces of dried marijuana, or six mature plants or twelve immature plants per qualified patient. See California Senate Bill 420 (Medical Marijuana Implementation) codified Health and Safety Code Sections 11362.7.

Knowingly possessing marijuana without legal authorization for medical purposes is illegal under California Health and Safety Code Section 11357.

Possession of concentrated cannabis is illegal under California Health and Safety Code Section 11357(a). This is a “wobbler” punishable as either a felony or a misdemeanor. The maximum penalty is up to three years in prison and a fine of up to $500. Do not be so sure that the Compassionate Use Act covers concentrates like hashish and tinctures.

Possession of under an ounce of marijuana under Section 11357(b) usually results in a citation with no jail or probation required. The fine is up to $100.

Possession of over an ounce of marijuana under Section 11357(c) has a maximum possible penalty of up to 6 months County Jail and/or a fine of up to $500.

Cultivation of marijuana can get you up to three years in California State Prison. Under Section 11358, anyone who plants, cultivates, harvests, dries or processes marijuana, unless legally authorized for medicinal purposes, IS GUILTY OF A FELONY, REGARDLESS OF THE AMOUNT.

Possession with intent to sell under Section 11359 also carries a maximum sentence of up to three years in California State Prison. This even includes giving away or attempting to give away any marijuana unless legally authorized for medicinal purposes. Actual “sale” is the exchange of marijuana for cash, services, favors or other benefits. Possession with the intent to sell is a non reducible felony.

Transportation of Marijuana can bring even bigger penalties: over one ounce up to four years in state prison under Section 11360(a).

Transporting under an ounce is a misdemeanor with a fine of up to $100.00

Federal prosecution of marijuana cases and marijuana dispensaries is changing everyday and varies from federal district to federal district within the state of California. County ordinances are also changing in response to the feds’ position. California marijuana law is not necessarily what most people think. So now more than ever you need an attorney who is on top of local, county, state and federal marijuana criminal defense. A qualified attorney can make the difference between federal prosecution, a “wobbler” in state court, or walking out the door to live free and grow again.