Monder Law Group - News
Proposition 64 Will Reduce Criminal Penalties for Marijuana and Make them Retroactive in the State of California
The United States spends an annual $3.6 Billion dollars of taxpayer’s hard earned money fighting the domestic Marijuana Industry. This number is astronomical and it is about time something changes. On this year’s 2016 Ballot Californians will be able to vote on the legalization and Regulation of Marijuana for non-medical use or also known as the Adult Use of Marijuana Act. Under this Ballot measure proposition 64 authorizes the possession, transport, purchase, consumption and sharing of up to one ounce of marijuana and up to eight grams of marijuana concentrates. Adults who are 21 years of age and older may have up to six plants per household out of public view. The legislation has left it up to local governments on how they may ban cultivation and regulation of dispensaries.
The licensing of commercial marijuana businesses will not take effect until January 1, 2018 if proposition 64 is passed in November. However, the effect on criminal statutes will take effect immediately.
Penalties for Adults after Proposition 64 Passes:
The new law would not only legalize the cultivation and possession of marijuana but also sales and possession of marijuana with intent to sell. The sales of marijuana have always been deemed felonies in the State of California. Now each of these type of felony statutes under Health and Safety Code Sections 11360 and 11359 will now be deemed misdemeanors under Proposition 64 and apply retroactively to individuals will prior criminal records for these charges. Also, penalties for adults 18 years to 20 years of age will receive infractions for marijuana use that is permitted to Adults 21 and over under proposition 64. This means if someone between 18 to 20 years of age is caught cultivating up to 6 marijuana plants or possessing up to an ounce of marijuana, then they can be charged with only an infraction. This will have the same or similar effect of getting a speeding ticket for going 5 miles over the designated speed limit.
Penalties for Juveniles after Proposition 64 Passes:
The new law would treat everyone 18 or younger the same or better than adults charged with a crime under Health and Safety Code Sections 11357-11360. Juveniles will only be charges infractions for possession of up to one ounce of marijuana and cultivation of up to 6 plants of marijuana. However, there are no misdemeanor or felonies for sales or intent to sell marijuana. This means there is no more threat of jail or fines. Juveniles will be required to take classes and complete community service as the worst-case scenario. Proposition 64 will mandate completion of drug education classes and it will be free for the youth to participate in such programs. Under these guidelines, the person being charged cannot have a prior conviction to qualify for treatment under the new law.
WHAT ABOUT ALL THE CRIMINAL CASES PEOPLE HAVE ALREADY BEEN CONVICTED OF BEFORE PROPOSITION 64?
The Retroactive Effect of Proposition 64:
Most people reading this article are most concerned about this point in particular given the convictions in the past have had a detrimental effect on their future. The elimination of criminal penalties by Proposition 64 is made retroactive only for convictions under Health and Safety Code Sections 11357, 11358, 11359, and 11360. Similar to Proposition 47 when it passed allowing individuals to reduce certain felonies to misdemeanors, Proposition 64 will do the exact same thing.
The most important aspect of this petition when filing with the court is that the court will have to presume a petitioner is eligible unless the party opposing the petition (i.e. prosecutor) provides by clear and convincing evidence that the petition does not satisfy the criteria. This shifts the burden onto the prosecutor to prove why you would not be eligible. This is huge! From a defense standpoint because we are never in the position to tell the court you must assume the conviction is now void by the new law. The record of conviction may not establish the amount of marijuana possessed or marijuana plants cultivated to be eligible for filing a petition under Proposition 64. The court must grant your request for petition under Proposition 64 as long as there is no unreasonable risk of danger to public safety! This is incorporated under Penal Code Section 1170.18(c) and Health and Safety Code Section 11361.8. If you have questions about filing a petition under Proposition 64 feel free to contact San Diego Criminal Defense Attorney Vik Monder at 619-405-0063 or visit San Diego Criminal Defense Attorney .
PLEASE UNDERSTAND MARIJUANA WILL NO LONGER BE CONSIDERED CONTRABAND FOR STOP AND FRISK PURPOSES!!!
This is huge! An officer cannot use the fact that you have marijuana on your person for reasons of detention, search, or seizure. This means your criminal defense attorney can file a 4th amendment unlawful search and seizure motion and get your entire case thrown out if you are arrested! The San Diego Police Department will have to think of new ways to conduct field searches in the future. You are free to leave and have marijuana on you in front of a police officer. They cannot ask for your name or identification to search for warrants based on the mere fact you have marijuana on your person on in plain view of them.
The only restriction to this is that you cannot just smoke or ingest marijuana in public. There are five new infraction categories that will deal strictly will consumption of marijuana in public. This means no smoking near schools, where children could be present, while driving a motor vehicle, or failing to keep marijuana plants in a locked space away from public view.
Please see the chart for all marijuana related criminal offenses and proposed changes for penalties under Proposition 64:
If you have any questions about Proposition 64 and any criminal exposure you may be looking at in the future, feel free to contact San Diego Criminal Defense Attorney Vik Monder at 619-405-0063 or visit San Diego Criminal Defense Lawyer.