On January 1st, 2018 the state of California passed proposition 64 which allowed businesses with the proper licensing to sell recreational marijuana legally in the state.
The law is now called the adult use of marijuana act however, under Health & Safety Code Section 113601, it is illegal for anyone to:
- Import into the state
- Administer2, or give away or offer to transport into the state with a valid license.
- How Does the Prosecutor Prove A Violation Of 11360 HS?
- What Are The Penalties For 11360 HS?
- Legal Defenses
How Does the Prosecutor Prove A Violation Of 11360 HS?
If you are charged with illegally transporting/selling marijuana, the prosecutor must prove the following to establish that you are guilty under Health & Safety Code 11360:
- You offered, sold, furnished, administered3 or transported marijuana.
- You knew of the presence of the substance and that it was marijuana at the time you offered, sold, furnished, administered or transported it.
- You did not possess the proper licensing required by the state and/or local license to sell marijuana.
What Is Considered “Knowledge” Of The Marijuana?
Knowledge means you were aware of the marijuana’s presence at the time, and that it was marijuana4.
The mere fact that you knew that the substance was present, and you knew that it was marijuana is enough.
What Is The Legal Definition Of Selling?
Selling is defined as exchanging marijuana for money, services, or anything of value.
What Are The Penalties For 11360 HS?
Unlawful transportation, importation, sale or gift of not more than 28.5 grams other than concentrate is an infraction for all ages.
If the amount is more than 28.5 grams or any amount of concentrate than the following applies based on changes made in proposition 64.
- Under 18, infraction
- 18 and over, misdemeanor
- 18 and over can be a felony if aggravating factors are present.
|Fine||Up to $1,000||As determined by the court|
|Jail||Up To 6 months County Jail||2, 3 or 4 years in jail|
What Are The Aggravating Factors That Increase The Penalty To A Felony?
- Defendants who have a prior conviction for certain serious violent felonies.
- A conviction for a sex crime that requires them to register as a sex offender.
- Two or more prior convictions for HS 11360 sale/transportation of marijuana.
- Defendants who knowingly sold attempted to sell, or offered to sell or furnish marijuana to someone under 18; and
- Defendants who imported or attempted or offered to import into California, or transported or attempted/offered to transport out of California for sale, more than 28.5 grams of marijuana or more than four grams of concentrated cannabis.
Depending on the circumstances, an attorney will evaluate your case and assess the most effective legal defenses to assist in negotiating a possible charge reduction, or if applicable, dismissal of the charges.
Below are possible legal defenses to a charge under Health & Safety Code Section 11360 HS:
The Marijuana Was For Personal Use
If the marijuana that you were transporting was for your own personal use and you did not intend to sell5 then you may not be charged with a crime.
Also, depending on the amount of marijuana found, the charge may be significantly reduced or dismissed altogether.6
Under these circumstances, a skillful attorney can argue to the prosecutor that, the fact that the marijuana was for your personal use, with no intent to sell, a charge under Health & Safety Code section 11360 would be improper.
You Are The Primary Caregiver Of Someone Authorized To Use Medical Marijuana
If you are the primary caregiver7 of someone authorized to use medical marijuana, then a skillful attorney may be able to argue to the prosecutor that your transportation and/or administration of the marijuana was also NOT illegal.8
You Did Not Know The Plant Was Marijuana
Under Health & Safety Code § 11360, you are required to have knowledge of the nature or character of the plant as marijuana. Therefore, knowledge is a critical part of this charge.
You Were A Victim Of Entrapment By Law Enforcement.
Entrapment is the act of law enforcement officers or government agents inducing or encouraging a person to commit a crime when the potential criminal expresses a desire not to go ahead.
Entrapment is an effective legal defense if the commission or encouragement of the criminal act originated with the police or government agents, instead of with the “criminal.”4
There Is Insufficient Evidence Against You
An attorney can show the prosecutor or a jury that they do not have enough evidence to convict you under Section 11360.
This can be done with mitigating evidence, evidence that the marijuana seized was the product of an illegal search/seizure or proof that not all elements of the crime were met by showing that the evidence submitted is either insufficient or insubstantial.
- California “possession for sale” laws – Health And Safety Code 11351:
- California “transportation of a controlled substance” laws – Health And Safety Code 11352:
- California “marijuana cultivation” laws – Health And Safety Code 11358:
- California “possession of methamphetamine for sale” laws – Health And Safety Code 11378:
Next Steps If You Need Help
If you have been arrested and would like to learn more about how attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you would like to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.
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- California Health & Safety Code Section 11360 – (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 marijuana shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of two, three or four years. (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 marijuana, other than concentrated cannabis, is guilty of a misdemeanor 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, such person shall be released by the arresting officer upon presentation of satisfactory evidence of identity and giving his written promise to appear in court, as provided in Section 853.6 of the Penal Code, and shall not be subjected to booking. [↩]
- A person administers a substance if he or she applies it directly to the body of another person by injection, or by any other means, or causes the other person to inhale, ingest, or otherwise consume the substance. [↩]
- Marijuana means all or part of the Cannabis sativa L. plant, whether growing or not, including the seeds and resin extracted from any part of the plant. [It also includes every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin.] [It does not include the mature stalks of the plant; fiber produced from the stalks; oil or cake made from the seeds of the plant; any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake; or the sterilized seed of the plant, which is incapable of germination. [↩]
- Id. [↩] [↩]
- The medical marijuana defense provided by Health and Safety Code section 11362.5 is not available to a charge of sales or offering to sell under Health and Safety Code section 11360. (People v. Galambos (2002) 104 Cal.App.4th 1147, 1165-1167 [128 Cal.Rptr.2d 844]; People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1389 [70 Cal.Rptr.2d 20].) The defense is not available even if the marijuana is provided to someone permitted to use marijuana for medical reasons (People v. Galambos, supra, 104 Cal.App.4th at pp. 1165-1167) or if the marijuana is provided free of charge (People ex rel. Lungren v. Peron, supra, 59 Cal.App.4th at p. 1389). Evidence of a compassionate use defense may be admissible if the defendant denies intent to sell and asserts such a defense to simple possession or cultivation. (See People v. Galambos, supra, 104 Cal.App.4th at p. 1165 [trial court properly instructed on medical marijuana defense to simple possession and cultivation for personal use]; People v. Wright (2004) 121 Cal.App.4th 1356 [18 Cal.Rptr.3d 220], review granted Dec. 1, 2004, S128442 [Supreme Court granted review on issue of whether evidence of compassionate use admissible in case where possession for sale charged]. [↩]
- “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 marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than $100.” Health & Safety Code section 11360(b). [↩]
- A primary caregiver shall be at least 18 years of age, unless the primary caregiver is the parent of a minor child who is a qualified patient or a person with an identification card or the primary caregiver is a person otherwise entitled to make medical decisions under state law pursuant to Sections 6922, 7002, 7050, or 7120 of the Family Code. Health & Safety Code section 11362.7(e [↩]
- “Primary Caregiver” means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person. Health & Safety Code section 11362.5. [↩]