The state of California is historically one of the most progressive when it comes to marijuana growth and consumption. For example, marijuana was decriminalized in California in 1975, and medical marijuana use has been legal in the state since 1996. However, the state is posed to loosen restrictions even more by allowing the growth, sale, and consumption of marijuana for recreational use by adults. Some activities and quantities will still be illegal, though, so it pays to be an informed consumer about California marijuana laws.
Certain activities surrounding recreational marijuana are already allowed, while others will take longer to implement. The slow pace is stymied, in part, by federal laws that still classify marijuana as a high-risk drug. So, we will begin our review of California’s current marijuana laws and scheduled upcoming changes with an explanation of how marijuana is categorized on a federal level.
United States Federal Marijuana Laws
Marijuana growth, possession and consumption remains illegal on the federal level. Cannabis is listed as a Schedule I drug under the United States Controlled Substance Act (CSA). (1)
What is a Schedule I Drug?
According to the Drug Enforcement Administration (DEA), which is charged with enforcing federal drug-related laws and overseeing federal drug-related investigations, Schedule I drugs carry a high abuse potential and may create an acute physical and/or psychological dependence. Other drugs in the Schedule I category include heroin, ecstasy, peyote, LSD, and methaqualone.
Federal Penalties for Trafficking Schedule I Drugs
As a result of the DEA’s Schedule I classification of cannabis, federal charges related to the growth, distribution, and consumption of the plant carry heavier judicial penalties for defendants than do lower-classified drugs, such as Vicodin, Valium, ketamine, and oxycodone.
For example, an individual convicted of federal marijuana trafficking charges with as little as one marijuana plant can be sentenced to as many as five years in prison and a fine of up to $250,000 for a first offense. A second trafficking conviction can lead to a sentence of up to 10 years for the same, one plant. Simple marijuana possession is punishable by up to one year in federal prison and a $1,000 fine. (1, 2)
Marijuana Consumers May Avoid Prosecution, Traffickers May Not
If there is any good news to glean from this, it is that the federal government has taken a mostly hands-off approach to the issue of personal marijuana possession, opting instead to allow states to establish their own personal-use laws. The federal government is interested, however, in prosecuting large-scale marijuana traffickers.
That’s not to say that the federal government hasn’t or will not ever move in to shut down and prosecute smaller marijuana growers and sellers. The threat of the federal government’s interference looms over the entire marijuana industry, and it is why marijuana remains a primarily cash-only business. Financial institutions, including banks and credit card companies, fall under federal jurisdiction. So, marijuana businesses have not historically been allowed to use such institutions as part of their business model.
Overview of Existing California Marijuana Laws
The medical marijuana laws established in California in 1996 allow California residents 18 and over with a qualifying medical condition to obtain a medical marijuana permit. The permit allows patients to legally possess up to eight ounces of marijuana. Medical marijuana patients are also permitted to have a maximum of six mature plants or up to 12 immature plants.
Approved Conditions for Medical Marijuana Permits
Medical marijuana use in California is approved for the following conditions (3):
- Multiple Sclerosis
- Chronic pain
- Other debilitating conditions
Primary Caregivers and Medical Marijuana Laws
Medical Califronia marijuana laws apply to not only the patient, but the patient’s primary caregiver as well. A primary caregiver is someone who is designated by the patient as the caregiver, and who maintains consistent responsibility for the patient’s needs, such as health, safety, and housing. Neither the patient nor the caregiver may ever sell marijuana or possess more than is reasonably necessary to aid in the patient’s medical needs. (3)
How Do I Get a Medical Marijuana Card?
Required Documents to Obtain a Permit
Medical Marijuana Identification Cards (MMIC) are available by completing the necessary application and providing the following documentation to your local public health department.
- A copy of your doctor’s medical recommendation
- Proof of identity (e.g. California driver’s license)
- Proof of residency (lease agreement, utility bill, California motor vehicle registration)
Required Fees and Fee Reductions
A fee is required to obtain the MMIC, and the application must be submitted in person. As of this writing, the fee is $100. Medi-Cal recipients qualify for a 50-percent reduction in the application fee. Indigent patients who participate in the County Medical Services Program have their application fees waived. Finally, upon application submission, your picture will be taken, and that picture will appear on your MMIC card. (3)
How Long Will It Take to Get My Card?
Completed applications take up to 30 days to process, and the county program must make the MMIC available to you within five days of verification. Contact your county agency if you do not receive your MMIC within 35 days of submitting your completed application. (3)
Recreational marijuana use is now legal in California, just as medical marijuana use has been legal since 1996. This is due to the passing of Proposition 64, which made California the fifth state to legalize recreational marijuana consumption. The Adult Use of Marijuana Act (Proposition 64) passed with California voters by a margin of 56% to 44% during the state’s November 8, 2016 general election.
Cities May Establish Their Own Recreational Marijuana Shop Rules
The legal marijuana industry in California is set to explode, even if the threat of federal intervention still looms. Note, however, that California allows its towns and cities to decide on their own whether or not to allow licensed cannabis retailers to open within their borders. However, it is legal statewide for individuals over the age of 21 to grow marijuana plants inside, regardless of how localities govern marijuana sales. (4)
Recreational Purchase, Possession, and Use Guidelines
Limits on Recreational Marijuana Possession and Purchase
In addition to an expansion of commercial marijuana growth endeavors, Proposition 64 also expands California’s marijuana laws to include recreational consumption by adults aged 21 and older. The new law allows recreational marijuana users in California to possess up to one ounce of marijuana at a time. They may also cultivate up to six plants, as long as said plants remain out of public view. (5)
Recreational marijuana users are still unable to purchase marijuana from a store without possessing a valid medical marijuana card, though that will change in 2018. However, adults may now grow, consume, and share marijuana without a medical card. While it is currently illegal for them to purchase marijuana, recreational users may obtain the plant as a gift, for example.
When Can I Buy Recreational Marijuana in Dispensaries?
Once California works through all of the required regulations on state and local levels, marijuana will be available for purchase by recreational users, too. Areas of the state that already have an established medical marijuana system, such as Oakland and San Francisco, may open earlier than others for recreational purchases. Regardless, January 1, 2018 is the date on which the state will begin issuing licenses to prospective recreational marijuana sellers. Stores in California that sell marijuana cannot legally sell alcohol or tobacco products, which is another limitation of California’s new marijuana laws.
California Medical and Recreational Marijuana Products
As stated in previous sections, both recreational and medical marijuana use is now legal in California. The amount of product that one person can possess varies based on user type, but flowers, edibles, and concentrates are legal for most adults aged 21 and over.
Limits on Marijuana Product Contents and Dose Strength
Regardless of whether the buyer is a medical or recreational user, there are legal limits placed on the additional contents allowed in marijuana products. Prohibited additives include caffeine, nicotine, alcohol, and dairy. Therefore, alcohol-based tinctures, pre-rolled joints, and caffeine-, dairy-, and alcohol-infused products are not allowed. Further, California also places limits on the amount of THC allowed in marijuana products. Each serving cannot exceed 10 milligrams, and any single package cannot contain more than 100 milligrams of THC.
Medical Patients Must Recertify
In addition to the big changes on the recreational marijuana front, Proposition 64 requires all current medical marijuana patients to obtain a new doctor’s recommendation by January 1, 2018. Those who possess a medical marijuana card avoid paying additional taxes on their marijuana purchases, and the amount of marijuana card carriers can possess is higher than the limits for recreational users. So, even though recreational use is legal, many people will still benefit from retaining an MMIC.
When Will New Marijuana Laws Take Effect in California?
As mentioned, the first set of laws related to Proposition 64 went into effect November 9, 2016, the day after the proposition passed. Those laws revolve around the legalization of personal use and possession for recreational users, as mentioned above. However, until the state declares that it is legal to sell marijuana for recreational use, recreational users may not buy, nor may anyone sell, marijuana for recreational use. However, friends may give one another plants or flowers. Again, January 1, 2018 is when the state will begin issuing licenses to sell recreational marijuana.
Where Can Marijuana Be Consumed?
While many people are happy about the passage of Proposition 64, California’s new marijuana laws have their limits, too. For example, location matters. Marijuana cannot be consumed in public locations, including inside or outside any federal property. Marijuana in any form can only be consumed at home for the time being.
Are There Public Places Where I Can Use Marijuana?
Proposition 64 does include language that will eventually allow on-site consumption of marijuana in certain licensed public locations.
It is illegal to consume marijuana in outdoor public spaces. That will not change, even when on-site consumption options, such as marijuana bars, open legally. Just as with drinking alcohol in public places, however, marijuana consumers will always have laws to abide by relative to driving under the influence, as well as having marijuana in their vehicles. California marijuana laws in that vein mirror established laws on the storage and consumption of alcohol.
What is Legal from the Point of View of a Consumer?
Driving While High
Impaired driving laws in California related to marijuana-specific use are virtually non-existent, but that doesn’t mean it is legal to drive while intoxicated on marijuana. Anyone who is suspected of driving while under the influence of any drug may be arrested. Currently, field sobriety tests are conducted, and if an officer suspects that you are under the influence of marijuana, you may be required to submit to a drug test and speak with a drug recognition expert.
Mouth Swabs and Measuring Intoxication
Some police agencies are in the testing stages of using a mouth-swab device to determine if a driver is high on marijuana. However, since marijuana remains in the system long after it is ingested, and its detection in the system varies based on factors including body size and frequency of use, such swab tests are fallible. As it stands now, a California task force will forward recommendations to the California Legislature regarding detection of marijuana-impaired driving. Impairment laws cover the operation of vehicles, planes, and boats. (7)
Can I Drive with Marijuana in My Car?
Since marijuana possession is decriminalized, having a legal quantity of marijuana in your car is not an issue. Of course, where the cannabis is stored in your vehicle makes a difference. To avoid the appearance of impropriety, secure marijuana in the trunk of the car. That way, if stopped by the police, it will be clear to the officer that you are not actively smoking or otherwise consuming marijuana.
Penalties for Carrying Marijuana Inside Your Vehicle
Whether or not you appear impaired, a police officer can still cite you for driving with marijuana in the vehicle’s cab. Similar to California’s “open container” laws for alcohol, “open” marijuana is also punishable by a fine.
California defines an open container of marijuana as an unsealed container of any kind that contains marijuana. Examples include vape pens, edibles, loose cannabis, and any other THC product with an open seal. Avoid any hassles by keeping marijuana in the vehicle’s trunk.
Exceptions for Medical Marijuana Patients
The only individuals who may be allowed an exemption to the “open” California marijuana laws are those with valid medical marijuana cards. California law does allow medical patients to travel with open marijuana containers in their vehicles. However, active consumption while driving and driving while under the influence of marijuana are illegal for everybody.
What Behaviors and Quantities are Banned?
Aside from limitations on where you can smoke and what you can buy at the marijuana shop (no alcohol or tobacco), the new California marijuana laws have additional restrictions and regulations. As stated earlier, recreational users are limited to possessing one ounce of marijuana and six plants at a time. Also, adults 21 and over are allowed a maximum of four grams of THC concentrate, which includes products such as hashish. (2)
California Legal Restrictions and Penalties
Here are a few more restrictions related to recreational marijuana use.
- Possession of more than 28.5 grams of marijuana is a misdemeanor that may result in a jail sentence of up to six months and a fine of up to $500.
- Possession by anyone under 18 is an infraction that may result in legal consequences, including community service requirements, a mandatory drug education course, and a $100 fine. (2)
- Possession and consumption of any marijuana product on the grounds of a K-12 school is illegal. For those aged 18 and older, it is a misdemeanor that may result in a fine of up to $250 for a first offense. Individuals under the age of 18 may be charged with an infraction and sentenced to drug counseling and community service.
- Selling marijuana is banned by anyone without a special license. Considered a misdemeanor, anyone convicted of selling marijuana without a license may receive a penalty of up to six months in jail and/or a fine of up to $500. (2)
Circumstantial Evidence: Casual Smoker or Illegal Dealer?
The sale of marijuana will always be highly regulated, so understanding the potential for charges related to intent to sell is critical for any marijuana consumer. Even if you are only a marijuana consumer and not a salesperson, your behavior and possessions may give the wrong appearance to police agencies. Indicia of sale, or circumstantial evidence, is how unlicensed marijuana sellers are usually charged.
Avoid Looking Like a Drug Dealer
Specific evidence that can be used against you includes the following:
- Possession of drug scales and baggies
- Marijuana divided into containers
- Weapons and cash on scale
- Large amount of marijuana
- Arresting officer’s assessment that marijuana is for sale
It is critical for marijuana consumers to remove any hint of impropriety by staying within California’s possession guidelines, registering all weapons, and eliminating the presence of drug paraphernalia that gives the appearance of an intent to sell. (2)
Enhanced Felony Charges are Possible
Who Qualifies for Felony Charges?
Enhanced felony charges may be filed against certain individuals for possession of more than six marijuana plants. The list includes people with a record of serious violent felonies, registered sex offenders, those with two or more previous convictions for having more than six plants, and people who are in violation of certain California environmental laws related to marijuana growing. (2)
Similar felony enhancements apply to certain individuals who are convicted of possessing marijuana for sale without a license. The list includes previous convictions for serious violent felonies (e.g. murder, sexually violent offenses) and two or more misdemeanor marijuana sales convictions.
Additional Charges for Involving Minors
Selling marijuana to anyone under the age of 18 also carries felony charges. In addition to selling to minors, it is also unlawful to use minors to give away, prepare for sale, peddle, administer, carry, transport, or sell any kind or quantity of marijuana. Violations of this nature fall under California Health and Safety Code 11361, and sentences are served in California state prisons, not county jails. (2)
If convicted of minor-related marijuana charges, sentences vary based on the age of the minor. If the child is under the age of 14, sentences range from three to seven years in prison. If the child is over the age of 14, the sentences range from three to five years in prison. (2)
Employment and Rental Property
In addition to understanding the legal ramifications of marijuana possession and consumption, there are also civil considerations. For example, employers are still allowed to drug test employees for marijuana as part of a drug-free policy. Also, landlords may still prohibit renters from possessing marijuana on their rental properties.
Impact on Federal Benefits
Both medical and recreational marijuana users can be denied federal housing assistance. Marijuana use in federal housing can also lead to termination of other federal benefits, such as food stamps. (2)
Who Will Profit from the New Industry?
Certainly, the state and local governments of California will profit from the sale of marijuana. The products are taxed like other goods, and those monies are funneled into the General Funds of the state, cities, counties, and other jurisdictions where the purchases are made.
Where Will the Money Go?
Specifically, when taxes from sales related to Proposition 64 are collected, the funds will be dispersed as follows (8):
- Agencies and departments affiliated with and affected by facilitation of the marijuana industry and its laws will be reimbursed. Examples include the Department of Consumer Affairs, the Department of Food and Agriculture, the Department of Public Health, and the Department of Fish and Wildlife, among others.
- A $10 million grant will be dispensed to a public university for research on the effects and implementation of Proposition 64.
- The California Highway Patrol will receive $3 million.
- The Governor’s Office of Business and Economic Development (GO-Biz) will receive $10 million.
- The University of California at San Diego will receive $2 million.
- Remaining tax revenues will go to the Youth Education, Prevention, Early Intervention and Treatment Account (60%), the Environmental Restoration and Protection Account (20%), and the State and Local Government Law Enforcement Account (20%).
Positive Impact on Commerce
New businesses will profit as well, with cottage industries springing up as a result of new demand. The agriculture sector will bloom with the expansion of marijuana-related niches. Cannabis dispensary owners will set up shop and thrive. Pipe and smoke accessory manufacturers will also see an uptick in business. In addition, new private businesses will be needed to help control and mitigate the potential environmental impact of more and more growers burdening California’s natural resources.
Limits on Growers
Northern California’s Humboldt County has long been one of the world’s most prolific areas for the cultivation of cannabis. Farmers in California are required to obtain permits to grow legal cannabis, just as with any agricultural crop. Additionally, California limits crop size based on how it is grown and whether the crop is new or from an established grower source. New crops are limited to 10,000 square feet or approximately one-quarter of an acre. Pre-existing crops are allowed up to one full acre, as long as they meet specific requirements. (6)
With the passing of Proposition 64, the state has already experienced a dramatic increase in the number of registered growers. Such an increase is sure to put a strain on natural resources.
Chemical Testing and Environmental Impact
Concerns have been raised about the impact that a boom in marijuana growth will have on the local environment, including the use of pesticides and other chemicals. All marijuana products are tested for 66 pesticides and impurities (e.g., E. coli, salmonella), as well as heavy metals, mycotoxins, and other by-products (e.g., hair, insects, feces). So, concern about what such chemicals and other foreign objects can do to the environment is understandable. (4)
Water Requirements and Effects on Wildlife
People aren’t just concerned about how the chemicals used in marijuana cultivation will impact both humans and their environment. The need for so much water (five gallons per plant, per day, on average) spells potential trouble for the state’s already troubled fish populations as growers continue to divert water to feed their crops. (9)
Regulations and Guidelines to Ease the Environmental Burden
As a result of the concern, watershed best practices have been issued as guidance for cannabis growers. (10) Additionally, growers applying for commercial production permits are required to install water storage systems that are to be filled in the winter. (11) The stored water will help offset the growers’ reliance on surrounding water sources in the dry summer months.
Enforcement and Cooperation
Enforcement of ongoing cooperation with the water storage requirements is a concern for some who believe that new growers may stop following such requirements once they are on the books as official growers with the state. The jury is still out on the long-term impact that marijuana cultivation will have on the environment, but cooperation between regulators and growers is critical for mitigating as much damage as possible.
California marijuana laws have changed dramatically, and even more, changes are on the horizon. Familiarizing yourself with the do’s and don’ts related to the cultivation, sale, possession, and consumption of recreational and medical marijuana will help you avoid the pitfalls associated with the illegal aspects of the industry. In that way, you will ensure yourself a positive experience with marijuana from beginning to end. What additional changes would you like to see California incorporate into the ongoing evolution of its marijuana laws?