California Marijuana Law
You'll find California's Marijuana Laws Rules and Regulations provided by Award Winning Cannabis Attorneys Craig and Marc Wasserman of Pot Brothers at Law. If you have a question, make sure you check out our FAQ page we just added. We start off with the Medical and Adult Use of Cannabis Regulation and Safety Act (MAUCRSA) approved by the legislature in 2017.
Legality of Cannabis in California
Yes, and no. Three legal regimes apply to Cannabis: Federal, State and Local. Under Federal Law, Cannabis is still classified as a Schedule I substance under the Controlled Substances Act. There has been legislation introduced to de-schedule Marijuana and reclassify it from Schedule I, but nothing has passed yet as of April 2017 and the CSA is still the Federal Law in all 50 states.
Under State law in California, you have a defense as an individual charged with possession for sale of marijuana (Cal Health and Safety Code 11359) if you are a marijuana patient collectively associating with other patients, as long as you are doing so in a not-for-profit way, which is the subject of much confusion and litigation. Prop 64 which went into effect in November 2016, decriminalizes possession of cannabis in California and allows individuals to cultivate up to 6 plants per residence.
Cannabis businesses will be able to become legal if they are approved for state permits under MCRSA and AUMA. It is important to note that in order to apply for a California state license, you will need a local permit from either your city or county and be compliant with the local regulations and have been approved by your local governing body in order to do so.
Please be advised that marijuana activity is still against federal law as noted above. There is a quasi-defense available as long as Congress continues to pass an appropriations rider (that has been reinstated every year so far since 2014) which prohibits DEA spending on medical marijuana enforcement. California also introduced a bill in 2017 (AB 1578) that would prevent local law enforcement from participating with federal authorities on marijuana enforcement activities if it passes.
You can read the text of prior Medical Marijuana laws passed in California here:
- HSC 11362.5 Prop 215 – Text of Prop. 215
- HSC 11362.7 – 11362.85 CA Medical Marijuana Program Act (SB 420)
- HSC 11362.9 California Marijuana Research Program
California Cannabis Laws and Regulations
Here is some useful information from NOMRL regarding California's cannabis laws for Adult Use Marijuana Act (AUMA) from licensing to unlawful possession and what you can expect for fines including jail time if you break the new recreational marijuana laws for California.
Under AUMA it is LEGAL for any adult 21 or over to:
(1) Possess, process, transport, purchase, obtain, or give away to persons 21 or older, not more than one ounce of cannabis or 8 grams of concentrated cannabis [HSC 11362.1(a)(1) and (2)].
(2) Cultivate, possess, plant, harvest, dry or process not more than six live plants and possess the produce of the plants [HSC 11362.1(a)(3)
(a) Any cannabis in excess of one ounce is stored in the person's private residential property, in a locked space, and not visible from a public place.
(b) No more than six plants are planted at any one residence at one time.
(c) Local governments may impose reasonable restrictions on cultivation, but may not forbid cultivation indoors in a residence or accessory structure that is fully enclosed and secure. Locals are free to prohibit outdoor cultivation altogether until such time as adult use is made legal under federal law. (HSC 11362.2(b)).
Violation of restrictions on personal use cultivation is a $250 infraction for six plants or less [HSC 11362.4(e)].
- Smoke, vaporize or ingest cannabis or cannabis products in any public place ($100 infraction). Exception: local governments may permit on-site consumption at state-licensed premises in their jurisdiction [BPC 26200(g)].
- Smoke or vaporize cannabis in any non-smoking area, or within 1,000 feet of a school, day care or youth center while children are present, except privately at a residence. ($250 infraction)
- Consume cannabis or possess an "open container" of cannabis while driving or riding as a passenger in any motor vehicle, boat, or airplane ($250 fine). Exception: consumption by passengers may be permitted in commercial vehicles specifically licensed for such purposes without children present.
- Possess or use cannabis on the grounds of a school, day care or youth center while children are present. ($100 fine).
- Manufacture concentrated cannabis with a volatile solvent (except for state-licensed manufacturers). Volatile solvents include explosive chemicals like butane but not ethyl alcohol.
(Open containers are defined to mean any receptacle containing cannabis or cannabis products that has been opened or has a seal broken, or loose cannabis flower not in a container, except when in the trunk of the vehicle. Exception: Qualified Prop 215 patients carrying an ID card or recommendation may possess cannabis in a container that is closed or resealed [VC 23222].)
It is also unlawful to use cannabis while in a car under Vehicle Code 23220 & 23221 even if you are a passenger. This is also true for cannabis edibles.
AUMA does not repeal, affect or preempt:
- The rights of employers to maintain a drug and alcohol-free workplace, or to have policies forbidding use of cannabis by employees
- The ability of landlords and other private parties from prohibiting or restricting use of cannabis on their previously owned property.
- The ability of government agencies to prohibit or restrict use of cannabis within a building they own or occupy
California's medical cannabis laws under Proposition 215 remain in effect under AUMA. Prop 215 gives patients and their designated primary caregivers the right to possess and cultivate cannabis for their personal medical needs given the recommendation or approval of a California-licensed physician. Because there is no set limit on the amount patients may possess or cultivate, the argument can be made that patients may legally possess more than the one ounce and six plants allowed under AUMA if their medical needs require. Patients who do so should exercise discretion by keeping their stash at home and not carrying more than one ounce in public.
There is no age limit on medical use. Minors under age 18 need permission from their parents or guardians to use medical cannabis. Young adults age 18-20 are allowed to visit state-licensed medical dispensaries, but not adult-use ones.
The parental rights of qualified Prop 215 patients are protected by AUMA in family and juvenile court proceedings (HSC 11362.84)
Prop. 64 added Section 26033 to the Business and Professions Code, protecting patients and primary caregivers who cultivate an unspecified amount for themselves or no more than five patients, if they receive compensation only under Subdivision (c) of Section 11362.765 of the Health and Safety Code. Under Prop 215, patients are still entitled to grow and possess whatever amount of marijuana is consistent with their medical need, though this is subject to local limits and land-use restrictions, including bans. Locals may not ban 6-plant-per-parcel gardens under Prop. 64, though they may "reasonably regulate" them, including banning outdoor cultivation.
Retail sales of cannabis are subject to the standard state sales and use tax of 7.5% - 9.25%.
Exception: Medical users with a state medical cannabis ID card are exempt from the sales tax for type "M" medical cannabis.
Many local governments assess additional taxes on cannabis businesses, ranging as high as 10-20% of total revenues.
As of Jan 1, 2018:
- All retail sales of cannabis are subject to an additional 15% excise tax.
- Licensed commercial growers must pay a cultivation tax of $9.25 per ounce on cannabis flowers (or $2.75 on leaf)
Juvenile offenders: In general, AUMA exempts juveniles under 18 from criminal fines and imprisonment for cannabis offenses. Instead, they are sentenced to community service, drug education or counseling.
Adult offenders: Most offenses for adults 18 and over are punished either as non-arrestable infractions subject to a fine, or as criminal misdemeanors. For misdemeanors, the maximum sentence is normally a $500 fine and/or six months in jail.
Felony enhancements may be charged in aggravated circumstances such as repeat or violent prior offenses, environmental offenses, involvement of minors, etc. Also, prosecutors can charge violators with felony conspiracy to commit a misdemeanor if more than one person is involved in the crime.
Underage possession of one ounce or less by persons 18-21 is a $100 infraction. (For juveniles <18, no fine but community service and/or drug counseling)
Illegal possession of more than one ounce (or 8 grams of concentrates) is a misdemeanor.
Possession on the grounds of a grade school of one ounce or less during school hours is a $250 infraction for first offense; subsequent offenses are misdemeanors punishable by maximum 10 days in jail and $500 fine.
Illegal cultivation, harvesting, drying, or processing of more than six plants is a misdemeanor.
Felony enhancements allowed for:
- persons with two or more prior convictions for illegal cultivation,
- offenders with two prior violent felony "strikes" and registered sex offenders
- violation of specified environmental statutes regarding illegal diversion or discharge. of water, hazardous waste, endangered species, etc.
Possession of cannabis for illegal sale is a misdemeanor.
Felony enhancements allowed for:
- 3rd time offenders
- offenders with two prior violent felony "strikes"
and registered sex offenders
- knowing sale to minors <18; or
- employing persons <21 to help sell, cultivate, transport, etc.
Illegal sale, import, transport, or distribution (HSC 11360)
Illegal selling, furnishing, administering, giving away, transporting for sale or importing into the state is a misdemeanor.
Felony enhancements allowed for:
- importing into state or transporting for sale out of state more than one ounce of cannabis or 4 grams of concentrate
- 3rd time offenders
- and registered sex offenders
- knowingly providing to minors <18
Prop 64 eliminated or downgraded most cannabis offenses from felonies or misdemeanors to misdemeanors or infractions. Persons who have a prior conviction for an offense that would have received a lesser or no penalty had Prop 64 been in effect may petition the court for sentencing or dismissal and have their records changed accordingly. Most persons with felony records for marijuana offenses from before November 2016 can have their felonies cleared under this provision. Forms to file for Prop 64 re-sentencing are available from the California Judicial Council.
It is unlawful to drive while under the influence of marijuana or alcohol or any other drug by Vehicle Code 23152. "Under the influence" is not explicitly defined in the statute, but is interpreted to imply some degree of impairment. Therefore the mere fact of having taken a toke of marijuana does not necessarily mean one is DUI. For evidence of impairment, officers may administer a field sobriety test. Arrestees may also be required to submit to a blood or urine test under Vehicle Code 23612 or else forfeit their licenses. Since marijuana is detectable for much longer periods in urine than in blood (several days vs. several hours), a positive urine test constitutes much weaker proof of recent use and impairment than a positive blood test. In some jurisdictions, police are testing motorists with oral swab tests. Under current law, police cannot compel you to take a swab test like they can a blood or urine test. Oral swab tests can detect marijuana for a couple of hours to as long as a day or more after use.
Unlike federal law, California law requires a conviction for forfeiture of property involved in a drug crime. Also unlike federal law, state law does not permit forfeiture of personal real estate for marijuana cultivation. Vehicles may be forfeited only if 10 pounds or more of marijuana is involved. Health and Safety Code 11470. However, state authorities can choose to turn major violators over to federal prosecutors, in which case they may share in federal forfeiture proceeds.
AUMA does not apply on federal property. Possession in national parklands including Golden Gate Recreation Area is illegal. Marijuana, including both THC and CBD, remains an illegal Schedule One substance under the U.S. Controlled Substances Act. Federal charges are typically brought only in large cases where commercial distribution is suspected (e.g., cultivation of several hundred plants), or where the government stands to gain substantial assets through forfeiture.Text of the Controlled Substances Act.
AUMA authorizes the production of industrial hemp under regulations to be promulgated by the California Department of Food and Agriculture. Hemp is not taxed, regulated or licensed by the Bureau of Cannabis Control like cannabis intended for human consumption. Hemp growers are required to register with their local county agricultural commission, but no procedures for doing so have been established as of Dec 2017.