The use of weed for recreation and medical purposes has become common. California law legalized possession of this substance for personal use but in specific quantities. Even though pot is legal, controlling the substance to sell it without a license is a crime.
For you to be charged with the offense of possession of marijuana for sale, you must have been found in possession of seeds, leaves, or resin extracted from the plant. If you get arrested and face charges for this offense, you will face severe penalties after a conviction.
If your spouse or relative is battling charges with possession of marijuana for sale, it is critical to seek guidance from an experienced criminal defense attorney. At California Criminal Lawyer Group, we will work hard to investigate your case and provide a defense and ensure the best outcome in your case.
Overview of Possession of Marijuana for Sale
Except when the law allows it, having marijuana with an intention to sell it is a violation of Health and Safety Code 11359. When proving you are guilty under HS 11359, the prosecutor must establish these factors beyond a reasonable doubt:
1. You had a Controlled Substance in your Possession
For this offense, marijuana is any or all parts of the plant Cannabis Sativa, green or dry. You can get arrested for possession of the leaves, seeds, salt, or any derivative of the plant. You do not have to be holding something for you to be considered in possession. Possession of weed could be constructive or actual.
Actual possession of weed is when you are holding the substance or wearing something, and the pot is in your pockets. It is crucial to understand that sometimes a drug's actual possession is shared between two or more people. Constructive possession, on the other hand, is when you have control over the substance. Even when you did not touch the substance, you can still face criminal charges. Under California Drug laws, control over the substance could be
2. You knew of the Substances' Presence
Being in possession or control of weed will not get you convicted under HS 11359. The prosecutor must establish your knowledge of the presence of the drug. When drugs are discovered in a public or common area, it isn't straightforward for the authorities to determine its owner. If this was the case in your situation, you must work to prove that you had no control over the substance.
3. You Knew that what you Had was a Controlled Substance.
Before you are found guilty of violating HSC 11359, the prosecutor must prove that you knew that you had controlled the possession in California. The arresting officer can testify to your behavior during the arrest as proof that you knew that you had marijuana. If you tried to hide when the police approached, or you seemed nervous with their presence, they can assume that you knew you were committing a crime. However, with guidance from a top-notch attorney, you can present an argument that the police's presence and not the drugs were making you nervous.
4. You Intended to Sell the Weed
For purposes of Marijuana laws, selling the drug means you exchanged it or intended to exchange it for something of value. If you exchange marijuana for money, other items or satisfaction of debt will be considered selling. Since possession of weed is legal in California, you will only get convicted for selling it without a State License. When you face criminal charges, the prosecutor will present evidence of your intention to sell the substance.
Evidence, in this case, could be direct or circumstantial. Direct evidence includes your statements, or an officer sees you changing the substance for money. Circumstantial evidence, on the other hand, depends on specific factors of your case. Such evidence could include:
- Owning more than a few ounces of the drug is criminal. When possession of weed is legal in California, a specific amount that one can have is established. If you exceed the permitted amount for personal use, the police can assume that you intended to sell it.
- Equipment found alongside pot. If the arresting officers find items like scales or packs together with marijuana, they can use the evidence to establish your intention to sell.
- Most individuals who keep weed for recreation will store it in one container. When marijuana is found in small packages or bags, the prosecutor assumes it is for sale. However, there could be several reasons why one could store the drug differently, especially when they have a variety.
- Discovery of money or weapons with the substance could indicate a sale. It is not illegal to store a large quantity of cash at home. However, when you are found with marijuana together with a significant amount of money, it can make the prosecutor presume that you intended to sell the substance.
- An expert could testify that how the marijuana looked was possibly for sale.
5. The substance you Ha at the Time of Arrest was Marijuana
Before you get convicted of a violation of HSC 11359, they must establish that the substance you had possession was marijuana. If what you had resembled weed but was not a product of Cannabis Sativa, you can't get convicted.
6. You Had a Usable Amount of Pot during the Arrest
There are restrictions on the amount of marijuana one should have for both recreational and medical purposes. For you to be found guilty of possessing marijuana for sale, you must have owned a usable quantity of pot. A usable amount for this purpose is a quantity that is enough to be used as a controlled substance. Even when the amount of weed you had was not enough to get someone high, you can still face criminal charges. However, if the officers get only a trace of the substance, you will not be guilty of violating HSC 11350.
Penalties for Possession of Marijuana for Sale in California
For most people, possession of marijuana for sale in California is charged as a misdemeanor. After a misdemeanor conviction, you will serve a jail sentence of six months and court fines not exceeding $500.However, under the following circumstances, one may face felony charges:
- You had a previous conviction for a serious felony such as murder, manslaughter, or sexual violence
- You have more than two prior convictions for possession of marijuana for sale.
- If you were found in possession of marijuana and your intention to sell to a minor is clear. You will face felony charges for violating health Code Section 11359
In this case, a felony conviction attracts a jail sentence ranging from sixteen months to three years. When a person gets convicted of simple possession of pot in California, the law permits you to treat them as an alternative to the jail sentence. However, if you get convicted of possession with the intent to sell, the drug diversion will not be available for you.
With proper defense a d guidance from an attorney, you can secure probation instead of serving jail time. If you get probation, you will not serve time in jail but do one to three years' probation. Defendants who get sentenced to probation for possession of marijuana in California must adhere to these probation restrictions:
- Make regular progress reports with the court. When you are serving probation, the court requires you to regularly account for your progress or check in with your probation officer.
- Pay restitution
- Mandatory participation in therapy. If you are convicted of intending to sell marijuana, you will be required to attend drug therapy individually or as a group.
- You are required to submit for drug testing after a conviction. Should you be convicted of selling weed in California, the law requires you to submit to drug tests anytime you are requested to do so.
- Authorities can search your property without a warrant. Being arrested for marijuana possession can cause the police to do regular searches in your home, even without a search warrant.
A conviction for marijuana possession to sell leaves a scar in your life in many ways:
- Difficulty in securing employment. If you are charged with a felony for selling marijuana, you could find it challenging to secure employment. This is because most employers have reservations when offering a job to individuals with a felony criminal record.
- Professional Licenses. When you have a conviction for a drug-related felony in your record, you may be unable to obtain a license to practice professions such as law, nursing, or teaching. If you already have a permit, a conviction will attract a revocation of your
- Most landlords in California have a policy against renting to individuals who have felony drug convictions.
- Immigration consequences. A drug-related conviction is a ground to deny you a visa, green card, or foreign citizenship. If you are an immigrant in California, you can get deported after a conviction for violating HSC 11359.
- If you are undergoing divorce and child custody battles, having a prior conviction for marijuana possession could cause the court to deny your children custody.
If you face criminal charges for possessing weed for sale, it is crucial to seek legal guidance from a competent criminal defense attorney.
Legal Defenses to Charges for Possession of Marijuana for Sale
Depending on the circumstances under which you got arrested, there are legal defenses you can present to your case, including:
You did not Possess Marijuana
When you face charges for Possession of Marijuana, you can dispute your contact or control over the substance. Sometimes marijuana can be found with someone else, and they could claim you owned it. In most cases, such a charge is based on the testimony of another person. With guidance from a knowledgeable defense attorney, you can argue that you did not possess the drug.
The Weed Found During your Arrest was for Personal Use
Marijuana for personal and medical use is legal in California. Sometimes, police officers mistake an act of simple possession for an intention to sell. As a defense to your case, you could argue that the marijuana was for personal recreation and not for sale. The evidence used by the prosecutor to indicate your intention to sell the substance is not often straightforward. Therefore, this defense will be applicable, especially when you own a small amount of pot.
You Lacked Knowledge that the Weed was There
Before a prosecutor can prove that you are guilty of intending to sell weed, they must establish your knowledge of the presence of the regulated substance. If you did not know that the drug was there, you could not get convicted. When the weed or its products is not found in your personal property, this defense will be useful.
You Possessed Medical Marijuana for Use by a Patient
California drug law allows individuals suffering from serious illnesses such as cancer to grow or have marijuana for medical use. However, the sale and possession of marijuana are also restricted to a specific amount. Therefore, it is easy for one to be arrested and charged with violation of HSC 11359. If you are a patient or caregiver of a patient suffering from a severe illness, you can defend yourself from criminal charges. You can do it by arguing that the weed was for medical purposes.
Your Aim of Possessing the Particular Amount was to Share with Friends
The sale of marijuana is the exchange of weed with money or something of value. The prosecutor must produce sufficient proof of your intent to sell this drug before you get convicted for violating HSC 11359. Therefore, you can avoid conviction by arguing that you intended to share the pot with your friends and not sell it for money.
The Case is Based on an Illegal Search
If the police officers conducted an unwarranted search of your home, home, or their search went beyond the scope of the warrant, then you could be a victim of illegal search and seizure. Evidence that is obtained in an unlawful search and seizure may not be admissible in court. Therefore, your attorney could file a motion to challenge the evidence brought against you. This will help you negotiate a lighter sentence or dismissal of your case.
The Arresting Officers Violated your Rights During the Arrest
Even when you are suspected of committing a crime such as possessing marijuana, the arresting officers should respect your rights. Before the arrest, you should know your right to have an attorney. If the arresting officers violated your rights in any way, you could try to dismiss the evidence they collected. This will allow you to fight the drug possession charges brought against you.
Offenses Related to Violation of HSC 11359
California law regarding marijuana is broad, and many charges can be brought against you for cultivation, sale, possession, or export of the substance. However, you will face criminal charges if you violate the set laws. Offenses that are related to control of weed for sale include:
With marijuana use legal in California, there are fewer instances of a conviction for simple possession. However, the law requires that one possess not more than one ounce of the substance at a time. Passing some pot to your friends at some cost may attract criminal charges since the sale of the substance without a license is criminal. Underage individuals found in possession of marijuana may get sentenced to a fine of $100.This is because pot is only legal for individuals over 21 years.
Simple possession of pot is a misdemeanor. If you are convicted for this offense, you will pay a fine not exceeding $500 and spend at least six months in jail. Sometimes, first-time offenders found guilty of simple possession could get a diversion where they seek drug treatment instead of serving a jail sentence.
Cultivation of Weed
The growing hash for recreation is legal as long as you are above twenty years. However, the law only allows one person to produce not more than six plants. Also, you are expected to follow the local rules and do the cultivation in a locked area. Planting more than the required number of plants will attract criminal charges under HSC 11358.
When a person between eighteen and twenty-one years cultivates marijuana, they can be charged with an infraction punishable by a $100 fine. However, the cultivation of more than six plants for an adult is a misdemeanor that attracts a six-month sentence and $500 in fines. If you are a registered sex offender or have prior drug-related convictions, you could face a felony conviction.
Driving While in Possession of Pot
Possession of 8 grams of weed is legal in California for individuals above 21years. However, there are restrictions on driving under marijuana influence or with the substance in your vehicle. Vehicle Code section 23222 of California criminalizes the act of driving with marijuana that is not in a sealed container. Violation of this section of marijuana law is punishable by a fine, not exceeding$100.
If you drive a motor vehicle with an amount of marijuana exceeding the legal limit, you can get arrested even when the substance is in sealed containers. Even for individuals allowed to own, grow, and use medical marijuana, it is an offense to drive under the substance's influence. However, the prosecutor should establish that the use of marijuana-impaired your conduct. Also, your urine or blood samples may have to be taken to the lab to confirm the exact amount in your body.
With the court's discretion, driving under the influence of pot can be a felony or a misdemeanor. A first offense is always a misdemeanor and is punishable by:
- Three or five years if misdemeanor probation
- Up to six months in jail
- Suspension of your license for six months
- Fines that do not exceed $1,000
The court might charge you with a felony if you caused an accident while operating under marijuana influence. Also, repeat offenders are likely to face a felony conviction, which attracts the following penalties:
- Formal probation
- A prison sentence
- A one-year license suspension
Federal Law on Marijuana Possession and Sale
The controlled substance Act classifies marijuana as a hallucinogen, which is commonly abused. Section 841(a) of this law prohibits cultivation or Possession of the substance for sale. You commit a crime when you possess and intend to sell less than 50kgs or grow less than 50 plants. A conviction for the first offense is punishable by a sentence not exceeding five years and court fines amounting to $250,000.
If you are found in possession of large amounts of marijuana, the federal law will seek to prosecute you. When you intend to sell a small amount of marijuana, likely, the federal law will not be concerned with your case. However, when you intended to sell the product on federal property such as airports and national parks, you can still face the charges.
Owning marijuana for sale is an aggravated felony regardless of whether the conviction was on California or federal law. If you are an undocumented immigrant in California and found guilty of selling marijuana, you may face deported or rendered inadmissible.
Find a San Jose Criminal Attorney Near Me
If you have marijuana and the police officers establish your intent to sell it, you will be arrested and charged with possession to sell. Marijuana is legal in California for both medical and recreational uses. However, when you possess a large amount of marijuana intending to sell it, you will get charged with a California felony, which attracts serious legal consequences. The adverse effects of a drug-related conviction are likely to follow you for the rest of your life. Therefore, you will require guidance from an attorney who is conversant with the marijuana laws. If you are battling charges for violating section 11359 of the Health and Safety Code in San Jose, California, we invite you to contact us at California Criminal Lawyer Group. Call us today at 408-622-0204 and allow us to guide you through the case.