San Diego Possession of Marijuana Lawyer


In November 2016, California voters opted to legalize recreational use of small quantities of recreational marijuana by adults over 21. However, despite the passing of Proposition 64, recreational marijuana users under 21, or those who possess more than 1 ounce of the drug, or 28.5 grams, may still face criminal charges.

If you’ve been charged with possession of marijuana, it may be worthwhile to consult a San Diego marijuana attorney before you pay the fine, or if your possession charge is serious enough that you face possible jail time. If you talk to a San Diego possession of marijuana lawyer, you may find that you have options for fighting the charge and avoiding some of the potential consequences.

Marijuana Possession Defined

To convict you of marijuana possession, a prosecutor must prove beyond a reasonable doubt that:

  • The substance in question is marijuana
  • You possessed the substance
  • You knew it was marijuana
  • You possessed more than 1 ounce of marijuana, or more than 4 grams of concentrated cannabis

Your possession charge may allege that you possessed marijuana, or concentrated cannabis. In legal terms, the two substances are defined as:

  • Marijuana — All parts of the plant Cannabis sativa L., its seeds, resins, and any compound, derivative, mixture, or preparation of Cannabis sativa L., under California Health & Safety Code §11018.
  • Concentrated Cannabis — The separated resin taken from marijuana, under California Health & Safety Code §11006.5. This also can include or be known as hash, wax, kief, or oils.

To the average person, the idea of possession probably seems pretty straightforward. However, it isn’t always clear-cut in a court case. Possession can be actual or constructive.

  • Actual Possession — This is what most people probably think of when they hear the word “possession.” Actual possession is when you have the marijuana physically within your possession, such as having a bag of marijuana in your pocket.
  • Constructive Possession — This is a little more vague, and can include having marijuana in your car or your residence or stashed someplace where you could have access to it. To prove constructive possession, a prosecutor has to be able to show that the marijuana was within your control, which essentially means that you could retrieve it, such as from a kitchen drawer or a locker, and then have physical possession.

Penalties for Marijuana Possession

Under Health and Safety Code §11357, the penalties for possession of marijuana differ depending on your age and the amount of marijuana. Possible penalties may include:

  • Under 18, Less than 1 Ounce — Four hours of drug education or counseling and up to 10 hours of community service over a 60-day period for a first offense. Six hours of drug education or counseling and up to 20 hours of community service over a 90-day period for a second or subsequent offense.
  • Ages 18 to 20, Less Than 1 Ounce — No jail sentence, and the usual fine is $100.
  • Under 18, More Than 1 Ounce — Eight hours of drug education or counseling and up to 40 hours of community service over a 90-day period for a first offense. Ten hours of drug education or counseling and up to 60 hours of community service over a 120-day period for a second or subsequent offense.
  • Age 18 or Over, More than 1 Ounce — Up to 6 months in county jail and a fine of up to $500.
  • Minors in Possession on School Grounds — Anyone under age 18 who is in possession of less than one ounce of marijuana, other than concentrated cannabis, on school grounds during school hours may be charged with a misdemeanor. The possible penalty includes a fine of up to $250 on a first offense. On a second or subsequent offense, the minor may have to pay a fine of up to $500 and may be committed to juvenile detention for up to 10 days.

Additional Consequences of a Marijuana Possession Conviction

When you’re convicted of personal possession less than one ounce, most of the time you just pay the fine and you’re done. It doesn’t show up on your criminal record, and likely won’t have many negative consequences on your life. However, if you’re convicted of one of the more serious forms of marijuana possession, you may find that the conviction comes with consequences beyond jail time and fines. Depending on your circumstances, those may include:

  • Driver’s License Suspension — Under California Vehicle Code §13202.5, anyone between the ages of 13 and 21 who is convicted of a drug-related offense is subject to having driving privileges suspended, delayed, or restricted. If you already have a driver’s license, the DMV is required to suspend it for one year. If you don’t yet have your license, your ability to get a driver’s license is delayed by one year once you become eligible to drive.
  • Student Financial Aid — If you’re a college student or thinking about enrolling in college classes, a marijuana conviction can affect your ability to get federal financial aid such as grants or student loans.
  • Job Applications — If you’re convicted of possession of more than one ounce of marijuana, or of possession of concentrated cannabis, the misdemeanor or felony conviction may show up on your criminal record. If you apply for a job that requires a criminal background check, your potential employer may see the conviction and may not offer you the job.
  • Immigration Status — A felony conviction for possession of concentrated cannabis may affect your ability to get an immigration visa, green card, or citizenship.

Fighting a Marijuana Possession Charge

If you’ve been charged with possession of marijuana, there are a number of ways that an experienced San Diego marijuana attorney may be able to fight the charge if the circumstances are right and negotiate to get the charge dismissed or the penalties reduced. Some common strategies in fighting marijuana possession charges include arguing:

  • The drug wasn’t marijuana
  • You didn’t know the drug was marijuana
  • You weren’t aware it was in your possession
  • The marijuana wasn’t within your control
  • The police searched you or your property without your consent, and without a warrant or probable cause
  • The police found the marijuana through an illegal car stop or search

Alternatively, if this is your first or second possession offense, California Penal Code 1000 or voter-approved Proposition 36 allows you to complete a treatment program instead of jail.

Each case is unique, and a good marijuana lawyer can review the facts and evidence in your situation, hear your side of the story, and discuss whether any of these defenses or completion of treatment might be an option for you.

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.