Cannabis has been decriminalized and/or legalized in many states across the United States. However, criminal charges related to the possession, consumption, cultivation, distribution, and sale of marijuana are filed every day in both Federal and State court. Kocot Law offers cannabis criminal defense services across the entire State of California.

Federal Law vs. State Law

Despite decriminalization and/or legalization at the State level in many States across the country, the possession, cultivation, distribution, and sale of cannabis remains illegal under Federal Law due to its status as a Schedule One drug under the Controlled Substances Act. Because Federal law “wins” when Federal and State Law conflict, an individual or business can still be prosecuted for possessing, consuming, cultivating, distributing, or selling marijuana in a State that has decriminalized and/or legalized cannabis.

Decriminalization vs. Legalization

Decriminalization of marijuana refers to the removal or reduction of criminal penalties related to the possession, consumption, cultivation, distribution, or sale of marijuana. Legalization of marijuana also refers to the removal of criminal penalties, but also allows marijuana to be regulated for legal personal and commercial purposes. Whether you find yourself in a decriminalized or legalized jurisdiction, here are two things to remember:

  1. You can still be charged with a cannabis crime in Federal Court since Federal Law “wins” when it conflicts with State Law, and
  2. There still may be conduct related to cannabis possession, consumption, cultivation, distribution, or sale of marijuana that could result in civil or criminal penalties.

California Cannabis DUI Defense

I’m often asked: “Can I be charged with a DUI for driving under the influence of marijuana?” The short answer is yes, but cannabis DUIs differ from alcohol DUIs in several significant ways. This content outlines those differences, and provides a working knowledge of the law related to cannabis DUIs, and advises medical and recreational users to avoid driving while high on Marijuana.

A. What is the Difference Between Alcohol and Marijuana DUIs?

The key distinction between marijuana and alcohol DUIs is that marijuana is fat-soluble, whereas alcohol is water-soluble. So, why does this matter? While alcohol eliminates at a rate of .015-.03% per hour, marijuana can remain in your the system for weeks. Blood results may indicate that Tetrahydrocannabinol (THC) is in the system, but the mere presence of THC in the blood does not necessarily indicate that someone was impaired at the time they drove.

B. Isn’t Cannabis Legal In California Now?

Medicinal and recreational marijuana is legal under California state law. However, cannabis is still an illegal substance as stated by federal law. Therefore, you can theoretically still be prosecuted by the federal government for the possession, consumption, sale, cultivation, and distribution of marijuana in California.

Even if cannabis were legal under federal law, though, you still could be charged with a DUI in the same way one can be charged with DUI due to alcohol consumption despite alcohol being legal. The question becomes: Did the marijuana you consumed impair your ability to drive? Put another way, could you drive with caution of a sober person?

C. How Are Marijuana DUIs Charged?

In California, Vehicle Code (VC) 23152 and 23153 are the two sections charged by prosecutors across the state. VC 23153 is charged when someone gets hurt, and can be explored here.

In the context of an alcohol DUI, prosecutors charge VC 23152(a) and VC 23152(b). VC 23512(b) is the section that everyone is familiar with: you cannot drive with a BAC at or above .08%. People are less familiar with VC 23152(a), so let’s look at it a little more closely. VC 23152(a) states that one cannot drive “under the influence.” To prove that someone was “under the influence” at the time they drove, prosecutors must prove that the individual could not drive with the caution of a sober person due to their alcohol consumption.

So, what does this have to do with Marijuana DUIs? Marijuana DUIs are charged under a different vehicle code section (VC 23152(f)), but this section asks the same question:

Was the person driving “under the influence,” or, put another way, could the individual operate a motor vehicle with the caution of a sober person despite their marijuana consumption?

As you can see, there is no “per se” limit for marijuana that deems someone legally impaired like we have with the .08% or more with alcohol DUIs. As we will see later in this article, this opens the door to defenses that don’t necessarily exist when defending alcohol DUIs.

D. How Marijuana DUIs are Investigated: Drug Recognition Evaluations

Detecting Marijuana DUIs is a different ballgame in comparison to detecting alcohol DUIs. In fact, police officers across the state are being trained to detect marijuana DUIs as we speak. Marijuana intoxication simply does not present in the same way that alcohol intoxication does.

For example, a common field sobriety test that is administered during alcohol DUI investigations is the Horizontal Gaze Nystagmus (HGN) field sobriety test. During this test, the suspect must track an object (usually the officer’s pen or finger) from side to side with their eyes only. The officer checks the suspect for nystagmus, or any involuntary jerking of the eye. If the officer witnesses any involuntary jerking, it is considered to be an indication that the suspect is under the influence of alcohol. However, the HGN test has not been shown to indicate marijuana consumption or impairment. Therefore, law enforcement has had to develop different techniques to detect cannabis impairment.

Unlike alcohol DUI investigations, officers are trained to look for different clues that indicate marijuana consumption:

  • Green tongue
  • Dilated pupils
  • Odor of marijuana
  • Pulse

Also, after an arrest, law enforcement completes a secondary investigation at the station that is not performed in the context in an alcohol DUI investigation. For more information on the statistics of how stimulants affect driving ability and Marijuana DUI Charges, please visit the National Institute on Drug Abuse.

E. Detecting Cannabis Intoxication

What’s the difference between methods of detection in Cannabis and Alcohol DUIs? Currently, California’s law enforcement lacks methods of detection in the context of marijuana DUIs. Although there’s no such thing as a standardized breathalyzer for marijuana, companies are researching and developing a marijuana breathalyzer to sell to police departments. Until a legitimate breathalyzer hits the market, law enforcement relies on their own observations and a drug recognition evaluation to decide if someone should be arrested for a marijuana DUI.

Blood or Urine Substance Tests are commonly administered after someone is arrested for a Marijuana DUI. The blood test produces three different levels of THC, whereas urine only confirms the presence of marijuana in the system. As stated above, however, marijuana is fat-soluble and stays in the body for long periods of time. This presents significant problems when attempting to prosecute cannabis DUIs: How can it be said that someone is “under the influence” at a certain level of THC concentration in the blood when we have no “per se” limitations under the law? What if the person has been using marijuana for years and has developed a tolerance? Should we treat that person the same way we treat someone who just smoked marijuana for the first time? These types of questions give district attorneys across California headaches when prosecuting marijuana DUIs.

F. Administrative DMV Action & Penalties for Marijuana DUIs

Currently, DMV does not take any administrative action on one’s license if no alcohol is involved in an alleged DUI. However, if there is a mixture of drugs and alcohol, the DMV may take action on your license.

G. Hiring an Attorney for a Cannabis DUI

Hire a California Marijuana DUI Attorney who has experience dealing with Marijuana DUIs, specifically. There are similarities between alcohol and Cannabis DUIs, but in large part, they’re two different sub-categories within DUI Law. It’s critical that your California marijuana DUI lawyer is experienced in the investigation and prosecution of marijuana DUIs in order to put forth the strongest defense possible.

Civil/Criminal Charges and Penalties for Cannabis in California

A. Marijuana Possession

1. HS §11357(a)–Possession of Cannabis

“(a) Except as authorized by law, possession of not more than 28.5 grams of cannabis, or not more than eight grams of concentrated cannabis, or both, shall be punished or adjudicated as follows:

(1) Persons under 18 years of age are guilty of an infraction and shall be required to:

(A) Upon a finding that a first offense has been committed, complete four hours of drug education or counseling and up to 10 hours of community service over a period not to exceed 60 days.

(B) Upon a finding that a second offense or subsequent offense has been committed, complete six hours of drug education or counseling and up to 20 hours of community service over a period not to exceed 90 days.

(2) Persons at least 18 years of age but less than 21 years of age are guilty of an infraction and punishable by a fine of not more than one hundred dollars ($100).

2. HS §11357(b)–Possession of Concentrated Cannabis

(b) Except as authorized by law, possession of more than 28.5 grams of cannabis, or more than eight grams of concentrated cannabis, shall be punished as follows:

(1) Persons under 18 years of age who possess more than 28.5 grams of cannabis or more than eight grams of concentrated cannabis, or both, are guilty of an infraction and shall be required to:

(A) Upon a finding that a first offense has been committed, complete eight hours of drug education or counseling and up to 40 hours of community service over a period not to exceed 90 days.

(B) Upon a finding that a second or subsequent offense has been committed, complete 10 hours of drug education or counseling and up to 60 hours of community service over a period not to exceed 120 days.

(2) Persons 18 years of age or older who possess more than 28.5 grams of cannabis, or more than eight grams of concentrated cannabis, or both, shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both that fine and imprisonment.

3. HS §11357(c) and (d)–Possession of Cannabis and Concentrated Cannabis on School Grounds

(c) Except as authorized by law, a person 18 years of age or older who possesses not more than 28.5 grams of cannabis, or not more than eight grams of concentrated cannabis, upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 to 12, inclusive, during hours the school is open for classes or school-related programs is guilty of a misdemeanor and shall be punished as follows:

(1) A fine of not more than two hundred fifty dollars ($250), upon a finding that a first offense has been committed.

(2) A fine of not more than five hundred dollars ($500), or by imprisonment in a county jail for a period of not more than 10 days, or both, upon a finding that a second or subsequent offense has been committed.

(d) Except as authorized by law, a person under 18 years of age who possesses not more than 28.5 grams of cannabis, or not more than eight grams of concentrated cannabis, upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 to 12, inclusive, during hours the school is open for classes or school-related programs is guilty of an infraction and shall be punished in the same manner provided in paragraph (1) of subdivision (b).

(Amended by Stats. 2017, Ch. 253, Sec. 15. (AB 133) Effective September 16, 2017. Note: This section was amended on Nov. 4, 2014, by initiative Prop. 47, and on Nov. 8, 2016, by initiative Prop. 64.)

B. HS §11358: Cultivation of Cannabis

“Each person who plants, cultivates, harvests, dries, or processes cannabis plants, or any part thereof, except as otherwise provided by law, shall be punished as follows:

(a) Each person under the age of 18 who plants, cultivates, harvests, dries, or processes any cannabis plants shall be punished in the same manner provided in paragraph (1) of subdivision (b) of Section 11357.

(b) Each person at least 18 years of age but less than 21 years of age who plants, cultivates, harvests, dries, or processes not more than six living cannabis plants shall be guilty of an infraction and a fine of not more than one hundred dollars ($100).

(c) Each person 18 years of age or over who plants, cultivates, harvests, dries, or processes more than six living cannabis plants shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both that fine and imprisonment.

(d) Notwithstanding subdivision (c), a person 18 years of age or over who plants, cultivates, harvests, dries, or processes more than six living cannabis plants, or any part thereof, except as otherwise provided by law, may be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code if any of the following conditions exist:

(1) The person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code.

(2) The person has two or more prior convictions under subdivision (c).

(3) The offense resulted in any of the following:

(A) Violation of Section 1052 of the Water Code relating to illegal diversion of water.

(B) Violation of Section 13260, 13264, 13272, or 13387 of the Water Code relating to discharge of water.

(C) Violation of Section 5650 or 5652 of the Fish and Game Code relating to waters of the state.

(D) Violation of Section 1602 of the Fish and Game Code relating to rivers, streams, and lakes.

(E) Violation of Section 374.8 of the Penal Code relating to hazardous substances or Section 25189.5, 25189.6, or 25189.7 of the Health and Safety Code relating to hazardous waste.

(F) Violation of Section 2080 of the Fish and Game Code relating to endangered and threatened species or Section 3513 of the Fish and Game Code relating to the Migratory Bird Treaty Act, or Section 2000 of the Fish and Game Code relating to the unlawful taking of fish and wildlife.

(G) Intentionally or with gross negligence causing substantial environmental harm to public lands or other public resources.(Amended by Stats. 2017, Ch. 27, Sec. 123. (SB 94) Effective June 27, 2017. Note: This section was amended on Nov. 8, 2016, by initiative Prop. 64.)

C. HS §11359: Possession of Cannabis with the Intent to Sell

Every person who possesses for sale any cannabis, except as otherwise provided by law, shall be punished as follows:

(a) Every person under the age of 18 who possesses cannabis for sale shall be punished in the same manner provided in paragraph (1) of subdivision (b) of Section 11357.

(b) Every person 18 years of age or over who possesses cannabis for sale shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment.

(c) Notwithstanding subdivision (b), a person 18 years of age or over who possesses cannabis for sale may be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code if:

(1) The person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code;

(2) The person has two or more prior convictions under subdivision (b); or

(3) The offense occurred in connection with the knowing sale or attempted sale of cannabis to a person under the age of 18 years.

(d) Notwithstanding subdivision (b), a person 21 years of age or over who possesses cannabis for sale may be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code if the offense involves knowingly hiring, employing, or using a person 20 years of age or younger in unlawfully cultivating, transporting, carrying, selling, offering to sell, giving away, preparing for sale, or peddling any cannabis.(Amended by Stats. 2017, Ch. 27, Sec. 124. (SB 94) Effective June 27, 2017. Note: This section was amended on Nov. 8, 2016, by initiative Prop. 64.)

D. HS §11360: Cannabis Sales

“(a) Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any cannabis shall be punished as follows:

(1) Persons under the age of 18 years shall be punished in the same manner as provided in paragraph (1) of subdivision (b) of Section 11357.

(2) Persons 18 years of age or over shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment.

(3) Notwithstanding paragraph (2), a person 18 years of age or over may be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of two, three, or four years if:

(A) The person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code;

(B) The person has two or more prior convictions under paragraph (2);

(C) The offense involved the knowing sale, attempted sale, or the knowing offer to sell, furnish, administer, or give away cannabis to a person under the age of 18 years; or

(D) The offense involved the import, offer to import, or attempted import into this state, or the transport for sale, offer to transport for sale, or attempted transport for sale out of this state, of more than 28.5 grams of cannabis or more than four grams of concentrated cannabis.

(b) Except as authorized by law, every person who gives away, offers to give away, transports, offers to transport, or attempts to transport not more than 28.5 grams of cannabis, other than concentrated cannabis, is guilty of an infraction and shall be punished by a fine of not more than one hundred dollars ($100). In any case in which a person is arrested for a violation of this subdivision and does not demand to be taken before a magistrate, that person shall be released by the arresting officer upon presentation of satisfactory evidence of identity and giving his or her written promise to appear in court, as provided in Section 853.6 of the Penal Code, and shall not be subjected to booking.

(c) For purposes of this section, “transport” means to transport for sale.

(d) This section does not preclude or limit prosecution for any aiding and abetting or conspiracy offenses.

(Amended by Stats. 2017, Ch. 27, Sec. 125. (SB 94) Effective June 27, 2017. Note: This section was amended on Nov. 8, 2016, by initiative Prop. 64.)

Contact Kocot Law For a Free Consultation

If you have been charged with a cannabis-related crime, contact Kocot Law at 916-572-6455 for a free consultation.

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