Marijuana possession, sale, and distribution are regulated by both state and federal law. In California, marijuana is regulated as a “Schedule I” controlled substance, but voters passed a sweeping initiative in November 2016 (the Control, Regulate and Tax Adult Use of Marijuana Act (“the Adult Use of Marijuana Act”)), which provides for legal use and cultivation under specified conditions.
The substances covered by California's laws include marijuana and the active chemical substance in cannabis plants (Tetrahydrocannabinols, or THC), and synthetic equivalents. (Ca.Health & Safety Code § 11054.) There may be some exceptions to the following laws for medical marijuana possession and use. And, while not covered below, it is also a crime to drive under the influence of marijuana in California.
To learn more about driving while under the influence of marijuana, see Driving Under the Influence of Marijuana in California.
For information on California's medical marijuana laws, see Medical Marijuana Laws in California.
Effective January 1, 2017, adults in California may possess small amounts of marijuana. Possessing marijuana for sale is treated as a separate offense, discussed below.
Possessing (includes smoking and ingesting), transporting, purchasing, and giving away (to someone 21 years of age or older) less than 28.5 grams of marijuana is legal, and cannot be made illegal by local law. It is legal to possess up to four grams of concentrated cannabis. In addition, a person can possess, plant, cultivate, harvest, dry or process up to six living marijuana plants and the marijuana that they produce. (Ca. Health & Safety Code §11362.1.)
Notably, these rights do not extend to correctional facilities, and the government may prohibit or restrict them in any building owned or leased by the government. The law specifically notes that the new law does not affect an employer’s right to maintain a drug-free workplace. And an owner of private property (such as a landlord) may similarly restrict or prohibit small-amount use and possession. (Ca. Health & Safety Code § 11362.45.)
Smoking may not be done in a public place, or where smoking is prohibited. Smoking on the grounds or within 1,000 feet of a school, day care center, or youth center is generally prohibited. Possessing an open container of marijuana while driving is illegal, as is smoking while driving or as a passenger. Violations of these restrictions are infractions or misdemeanors. (Ca. Health & Safety Code § 11362.4.)
Possession of more than 28.5 grams is punishable with a fine of up to $500, up to six months in jail, or both. (Ca. Health & Safety Code § 11357(c).)
In November 2016, California voters also approved a comprehensive system for the cultivation, distribution, transportation, storage, manufacturing, and sale of non-medical marijuana. (Ca. Health & Safety Code § 26000 and following.) Sellers must be licensed, and taxes will be collected for sales.
Drug paraphernalia means all equipment, products and materials that are designed or intended to be used in growing, harvesting, processing, packaging, storing, or ingesting (using) drugs. (Ca. Health & Safety Code § 11364.5(a).)
In California, a business may sell drug paraphernalia, as long as such sales are handled according to the following regulations.
Separate display and sales area. A business must display and sell drug paraphernalia in a completely separate room where people younger than 18 are excluded (unless accompanied by a parent or legal guardian). Each entrance to such a room must be clearly marked with a sign stating that paraphernalia is kept inside, and that minors are not allowed to enter without a parent or guardian. (Ca. Health & Safety Code § 11364.5(a).)
Illegal entrance by minors. It is illegal for a business owner to permit someone younger than 18 to enter or remain in an area where paraphernalia is sold without a parent or guardian. (Ca. Health & Safety Code § 11364.5(b)&(c).)
Pharmacists and licensed wholesalers. These regulations do not apply to pharmacists who sell or furnish paraphernalia that is prescribed to a patient by a physician, dentist, podiatrist, or veterinarian. (Ca. Ann. Codes § 11364.5(f)(1)&(2).) They also do not apply to a manufacturer, wholesaler, or retailer licensed by the California State Board of Pharmacy. (Ca. Health & Safety Code § 11364.5(f)(3).)
Penalties. Business owners in California are not subject to criminal penalties for violating these rules. Rather, operating a business in violation of these regulations is grounds for revocation or nonrenewal of any license or permit (or denial of any future license or permit) that would otherwise allow the business to sell drug paraphernalia. (Ca. Health & Safety Code § 11364.5(g).)
To learn more about the laws surrounding medical marijuana dispensaries, see Can my California city outlaw medical marijuana dispensaries?
The cultivation, sale, delivery, or distribution of marijuana is governed by the state’s new law for 2017. California imposes a range of penalties according to the violation.
Unauthorized cultivation; possession for sale. As noted above, growing up to six plants for personal use is now allowed. Otherwise, a person who cultivates, harvests or processes marijuana without proper authorization; or possesses an illegal amount of marijuana for sale is guilty of a felony. If convicted, an offender will face a state prison sentence; however, the length of the sentence will vary according to the county in which the offender is sentenced, and is up to the sentencing judge. (Ca. Health & Safety Code § 11358 & 11359.) The judge may also order a fine of up to $20,000 per offense, but such a fine will not take the place of a prison sentence. (Ca. Health & Safety Code § 11372.) The court may also impose civil fines against a person who illegally cultivates marijuana to cover the state’s expenses in seizing, destroying, or otherwise appropriately handling illegal marijuana. (Ca. Health & Safety Code § 11470.1.)
Transport for sale, import into state, sales, or distribution. Again, California’s new law protects those who transport marijuana (as long as they do not do so for sale). Otherwise, a person who transports for sale any amount of marijuana within California, imports marijuana into California, sells, or otherwise distributes marijuana (or attempts to do any of these things), will face a state prison sentence of between two and four years. (Ca. Health & Safety Code § 11360(a).) The judge may also order a fine of up to $20,000 per offense, but the fine will not take the place of the prison sentence. (Ca. Health & Safety Code § 11372.)
Note that, as of 2016, transporting without intent to sell is excluded from this scheme; this means that a person transporting any amount of marijuana for personal use is not guilty of a felony (instead, the prosecutor may charge for misdemeanor possession. This does not include transporting or giving away concentrated cannabis, nor does it apply to people selling any amount of marijuana; for these crimes, the above prison sentences apply. (Ca. Health & Safety Code § 11360(a).)
If you have been charged with a marijuana-related offense, consult an experienced criminal defense attorney. While the penalties and consequences of a marijuana charge are governed by statutory law, only a local defense attorney knows how the prosecutors and judges in your area approach and handle such cases.