Weed may be legal in California, but you can still face federal criminal charges for using, growing, or selling weed in a manner that is completely lawful under California law. In recent years, the federal authorities had stopped targeting individuals and businesses engaged in medical marijuana activities. But it’s unclear whether the Trump administration will change course. And in what concerns recreational marijuana, it remains to be seen whether the federal government will intervene. Will California’s recreational marijuana dispensaries be allowed to flourish, or will the feds shut them down?
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California’s Cannabis Laws in a Nutshell
California was the first state in the country to legalize medical marijuana in 1996. Over the following two decades, a thriving medical marijuana industry became firmly rooted in the state despite frequent overhauls to California’s legal and regulatory framework for medical marijuana. State lawmakers addressed the confusion in the 2016 Medical Cannabis Safety and Regulation Act, an expansive piece of legislation that overhauled California’s licensing processes and regulations for patients, dispensaries, growers, manufacturers, and transporters of medical cannabis.
On November 8, 2016, California voters passed Proposition 64, or the Adult Use of Marijuana Act (AUMA). This legislation put in place the following changes to state marijuana law:
- The possession and use of up to one ounce of marijuana (or 8 grams of concentrates) is legal for adults 21 and over.
- The cultivation for personal use by adults 21 and over of up to six plants per residence is legal.
- The illegal cultivation, sale, transport, and possession for sale of marijuana are reduced from felonies to misdemeanors, except in the case of repeat or violent offenders or other aggravating circumstances.
- People with prior marijuana offenses can have their criminal record modified to show the offenses they would have received had Proposition 64 been in effect.
- The creation of a licensing regulation system for the commercial production and sale of recreational cannabis beginning January 1, 2018.
- The state will tax $9.25 on every ounce of bud at the production level.
- The state will tax 15 percent of both medical and recreational marijuana sales.
- Card-carrying medical marijuana patients are exempted from the current 7.25 percent sales tax.
- The production of industrial hemp is now legal.
Basically, the only way to run afoul of California’s marijuana laws and to face state prosecution is to possess or to produce too much cannabis for your personal use, or to cultivate, manufacture, transport, or distribute marijuana without the proper licenses. California may well be a cannabis-friendly state, but it’s still possible to face a criminal prosecution at the federal level.
Federal Law Mandates Strict Penalties for Marijuana Offenses
The federal Controlled Substances Act (CSA) classifies marijuana as a Schedule I substance with a dangerous potential for addiction and no accepted medical uses. The federal penalties for possession of any amount of marijuana are as follows:
- First Offense – Misdemeanor involving up to one year of incarceration and $1,000 in fines
- Second Offense – Misdemeanor punishable by 15 days to two years behind bars and $2,500 in fines
- Third and subsequent offenses – Misdemeanor or felony punishable by 90 days to three years of incarceration and fines of up to $5,000.
The penalties for the sale of marijuana depend on the amount of marijuana you’ve been accused of selling or attempting to sell:
- Less than 50 kilograms – Felony punishable by up to five years in prison and a $250,000 fine
- 50 to 99 kilograms – Felony punishable by up to 20 years in prison and fines of up to $1,000,000
- 100 to 999 kilograms – Felony involving five to 40 years incarceration and possible fines of up to $2,000,000
- 1000 kg and up – Felony carrying a sentence of ten years to life in prison and $4,000,000 in fines
As for the cultivation of marijuana, the federal authorities punish it on the basis of the number of plants you were caught growing:
- Less than 50 plants – Felony involving a five-year prison sentence and/or $250,000 in fines
- 50 to 99 plants – Felony punishable by 20 years in prison and $1,000,000 in fines
- 100 to 999 plants – Felony carrying a five to 40-year prison sentence and fines of up to $5,000,000
- 1,000 plants or more – Felony involving ten years to life in prison and fines of up to $10,000,000
With aggravating factors such as a trafficking activity that results in an injury or death, a sale within 1,000 feet of a school, or a case involving five grams sold to a minor, the above penalties may increase dramatically. The bottom line is: the federal government seriously punishes the possession, sale, and cultivation of marijuana.
Medical Marijuana Businesses Are Safe from Federal Prosecutions
In 2013, the Department of Justice (DOJ) told its prosecutors that prosecuting medical marijuana cases in states where it’s been legalized would no longer be a priority. The DOJ memo included eight factors for prosecutors to look at in deciding whether to charge a medical marijuana business with violating the Controlled Substances Act (CSA):
- Does the business allow minors to gain access to marijuana?
- Is revenue from the business funding criminal activities or gangs?
- Is the marijuana being diverted to other states?
- Is the legitimate medical marijuana business being used as a cover or pretext for the traffic of other drugs or other criminal enterprises?
- Are violence or firearms being used in the cultivation and distribution of marijuana?
- Does the business contribute to drugged driving or other adverse public health issues?
- Is marijuana being grown on public lands or in a way that jeopardizes the environment or public safety?
- Is marijuana being used on federal property?
If you own or work for a marijuana business, you should ensure that it complies with the above guidelines. Otherwise, you could be supplying the federal prosecutors with a reason to investigate and possibly charge your business with a violation of the CSA. For the time being, however, federal prosecutors and investigators are not investigating medical marijuana operations.
In 2014, the House passed an amendment to the yearly federal appropriations bill that effectively shields medical marijuana businesses from federal prosecution. Proposed by Representatives Rohrabacher and Farr, the amendment forbids federal agencies to spend money on investigating and prosecuting medical marijuana-related activities in states where such activities are legal. The Department of Justice tried to fight this restraint, but after a series of court battles, the judicial branch upheld the Rohrabacher–Farr amendment. This means that medical marijuana businesses will be safe as long as the Rohrabacher-Farr amendment is in place.
Enforcement of Federal Laws Against Recreational Cannabis Businesses
For non-medical marijuana businesses in states such as California that have legalized recreational marijuana, federal intervention isn’t just possible, it’s likely. The Rohrabacher-Farr amendment only applies to medical marijuana, so the Drug Enforcement Agency (DEA) and Department of Justice (DOJ) can put their resources towards the investigation and prosecution of these recreational marijuana businesses.
Attorney General Jeff Sessions – the chief federal prosecutor – is well-known for his anti-marijuana positions. And in February 2017, White House Press Secretary Sean Spencer said that Americans will “see greater enforcement” of federal laws against controlled substances and that recreational marijuana will be no exception. Thus, it is likely that recreational marijuana businesses will see raids by the DEA. But the scope of enforcement is difficult to predict. Sessions himself stated that federal law enforcement is “not able to go into a state and pick up the work that police and sheriffs have been doing for decades.”
Will Congress Step in to Protect Weed?
A bipartisan group of United States Congress members is working to change federal law so that states such as California can freely develop their recreational and medical marijuana industries. Members of the so-called “Cannabis Caucus,” which include social issue liberals to conservatives who believe in state’s rights, have proposed the following bills:
- H.R. 331 – States’ Medical Marijuana Property Rights Protection Act – Sponsored by Rep. Barbara Lee (D-California), this legislation would prohibit civil asset forfeiture being used against the owners of licensed medical marijuana facilities.
- H.R. 714 – Legitimate Use of Medicinal Marihuana Act, or LUMMA – Sponsored by Rep. H. Morgan Griffith (R-Virginia), this bill would shift marijuana from Schedule I to Schedule II within the Controlled Substances Act.
- H.R. 715 – Compassionate Access Act – Again sponsored by Rep. Griffith, the Compassionate Access Act would provide for “the rescheduling of marijuana, the medicinal use of marijuana in accordance with state law and the exclusion of cannabidiol from the definition of marihuana.”
- H.R. 975 – Respect State Marijuana Laws Act – Sponsored by Dana Rohrabacher, who was instrumental to passing the Rohrabacher-Farr amendment, this act allows people in states that have legalized marijuana to avoid prosecutions for violating the federal Controlled Substances Act.
Experienced Legal Advice for Your Cannabis Business
There is no telling exactly how the Federal government will fall on recreational marijuana in California. In such a fluid environment, marijuana business owners need solid legal counsel and effective representation.
At McElfresh Law, we are dedicated to serving cannabis businesses and consumers in the San Diego area. We are closely following every development in federal, state, and local law that could potentially impact the cannabis industry and our clients’ businesses. To learn more about how we can help your business, call us today at (858) 756-7107 for a consultation.
This website is intended for informational purposes only. Use of this website does not create an attorney-client relationship. Free consultation for criminal defense cases only. Cannabis business consultation requires a fee.