Even though California has legalized marijuana for recreational use, that does not mean that selling it will not land you in legal trouble. The law still keeps a close watch on the transport and sale of marijuana, in an attempt to keep the drug out of the hands of the people it perceives as vulnerable to its effects. As a result, selling marijuana when you are not licensed to do so can lead to a criminal charge that comes with serious penalties.
Having a marijuana attorney on your side to make sure you are complying with California's often confusing laws can keep you out of legal trouble. Having one if you have been charged with selling marijuana can prevent that charge from turning into a costly conviction. Regardless of where you are in the process, marijuana attorney William Kroger can help.
Even though Proposition 64 was passed in November 2016 and became effective on January 1, 2018, as the Adult Use of Marijuana Act, it did not mean that all of California's previous laws governing marijuana were thrown out. Instead, the legalization of marijuana for recreational purposes only limited those laws, preventing them from being applied to adults in California who had less than a set amount of the drug.
Importantly, the legalization of recreational marijuana left many of the rules governing the sale of marijuana intact. These are found at California Health and Safety Code 11360, which makes it a crime to sell or distribute marijuana unless you have the legal authorization to do so, usually in the form of state licenses to sell the drug.
To convict you under Health and Safety Code 11360, California prosecutors need to show, beyond a reasonable doubt, three things:
You sold, furnished, administered, or gave away marijuana, or offered to do so
You did not have a license to do so in the state of California
You knew of the drug's presence and that it was marijuana
One of the most important aspects of Health and Safety Code 11360 is that you can violate it, even if you do not receive anything of value for the marijuana: You can still face prosecution if you gave the drug away for free.
If prosecutors are able to convince a jury that you did these three things, then you will likely be convicted for the crime. Typically, this is a misdemeanor offense that comes with the following penalties:
Up to six months in jail
Up to $500 in fines.
However, there are three factors that can make these penalties either rise or fall in severity:
How much marijuana you sold
Your age
Your criminal history.
If the amount of marijuana that you were convicted of selling totaled less than 28.5 grams – the amount you have a right to possess under the Adult Use of Marijuana Act – than the crime is a low-level infraction that is punishable by just a fine of up to $100 under Health and Safety Code 11360(b).
If the amount you were convicted of selling went over this amount, though, the penalties will be steeper.
If you are under the age of 21, then you are not permitted to possess marijuana in the state of California, despite the Adult Use of Marijuana Act. Selling it, therefore, is also illegal.
However, in the knowledge that people under the age of 21 are less culpable, less financially secure, and more responsive to counseling than adults, California law substitutes rehabilitation and community service for the fines and jail time that adults face for selling marijuana.
Therefore, a first offense for selling marijuana to underage offenders carries the following penalties:
Eight hours of drug counseling
Up to 40 hours of community service, to be completed over a period of up to 90 days.
A second offense comes with slightly higher penalties:
Ten hours of drug counseling
Up to 60 hours of community service, to be completed over a period of up to 120 days.
People over the age of 21, however, can face much harsher penalties for a conviction of selling marijuana if they have certain offenses in their criminal history, or their arrest had certain aggravating factors. These include:
A prior conviction for a set of especially violent crimes, or for sex crimes that require them to register as a sex offender in California
Two or more prior convictions for selling or transporting marijuana under Health and Safety Code 11360
Knowingly selling or trying to sell marijuana to someone under the age of 18
Selling or transporting, or trying to sell or transport, more than 28.5 grams of marijuana or more than four grams of concentrated cannabis over California's state lines.
If you fall into one of these categories, then selling marijuana under Health and Safety Code 11360 is a felony offense carrying the following penalties:
Between 16 months and three years in jail
Fines of up to $10,000.
While you can face prosecution for giving away marijuana for free under Health and Safety Code 11360, the terms of the law expressly allow for circumstances that are permitted by other laws. One of those other laws is the Compassionate Use Act of 1996, which allowed for the use of marijuana for medicinal purposes in the state.
This is important because the Compassionate Use Act allows both qualified patients and their caregivers to possess marijuana. Of course, the whole reason for caregivers to have marijuana is to give it to the patients in their care. Carving an exception into California's law against selling marijuana, therefore, is a critical aspect of the Compassionate Use Act.
The crime of selling marijuana under Health and Safety Code 11360 also allows room for the sale of recreational marijuana under Proposition 64 and the Adult Use of Marijuana Act. By allowing for the sale of marijuana that is “authorized by law,” exceptions are also cut into Health and Safety Code 11360 by California's recreational marijuana laws.
When it comes to the sale of recreational marijuana in California, sellers need to abide by the rules and regulations that are promulgated by the Bureau of Cannabis Control. In order to sell marijuana in California legally, you need to obtain a permit to do so from this Bureau and become a licensed dispensary.
If you have been accused of selling marijuana in California, you will need to raise effective defenses or risk being convicted under Health and Safety Code 11360. Because of all of these exceptions to the law against selling marijuana, though, you often have numerous options at your disposal.
One of the elements that prosecutors need to prove in order to gain a conviction for selling marijuana is that you knew the marijuana was there. Instances where you were unaware of the drug's existence, while not necessarily common, are far from unheard of. For example, if you are carrying a friend's backpack and hand it over to someone else, unaware of the fact that there is marijuana in it, your lack of knowledge can be an effective defense to a charge of selling marijuana.
While police are supposed to detect crime and enforce the law, they cannot coax members of the public into committing crimes. The methods that they use to create a sale of marijuana to undercover officers can be coercive enough to amount to entrapment.
The complexities that surround California's marijuana laws are infamously difficult. So difficult, in fact, that police often make mistakes. In some cases, they end up arresting caregivers for giving their patient medical marijuana or arresting licensed sellers for conducting business. When they do, it can still take time and effort to prove your innocence by pointing out that you are legally allowed to sell or give the drug to someone else.
Finally, one of the most important defenses you can raise is against the sufficiency of the evidence. Law enforcement has to show, beyond a reasonable doubt, that you committed the crime of selling marijuana. If their evidence has any holes in it, at all, it can doom their case. Challenging every aspect of their case, therefore, can be the best defense that you can raise.
A charge of selling marijuana is not a trivial issue. Defending against it can take the skills and litigation help of a marijuana attorney while staying inside the law can require extensive advice.
If you want to avoid a charge for selling marijuana, or are already facing one, reach out to the Los Angeles law office of William Kroger by calling him at 323-655-5700 or by contacting him online.
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This page was reviewed and approved by William S. Kroger, a leading criminal defense attorney in Los Angeles. Mr. Kroger has decades of experience defending clients in both state and federal courts. He is recognized for his strong trial skills and dedication to protecting the rights of the accused. Throughout his career, he has successfully represented clients facing a wide range of serious criminal charges. His personalized defense strategies are designed to achieve the best possible outcome in every case. Clients trust Mr. Kroger for his knowledge, commitment, and proven results.
He is also an active member of respected legal organizations, including the American Bar Association and the National Association for Criminal Defense Lawyers. With his expertise and reputation, William S. Kroger is regarded as one of California’s top defense lawyers.
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