May 19, 2016

2016 is California’s year of cannabis legalization and medical regulation. However, the maze of laws, initiatives, and proposals makes it hard to keep up with what exactly a cannabis-related crime is and how severe the infraction and resulting penalties are. If you don’t know what to do – or not do, as the case may be – read on to get in the know…

Currently, many cannabis-related crimes are charged as felonies. For example, while simple possession is an infraction, acts such as cultivation, possession with intent to sell, transportation, and sales are all felonies, with a capital F. Since 2016 is slated to be California’s year of cannabis legalization and medical regulation, what does that mean for those engaged in these activities? Is there still criminal liability? The short answer: Yes. But let me explain…

As we know, the Medical Marijuana Regulation and Safety Act (MMRSA) is the new sheriff in town, regulating virtually every aspect of the industry – from seed to sale. While we all got excited with the passing of MMRSA and are now patiently – or not so patiently – awaiting license applications, the elephant in the room is the Adult Use of Marijuana Act (AUMA) – the recreational marijuana initiative.  AUMA will likely do much to send regulation makers at the Bureau of Medical Marijuana Regulation back to the drawing board and cost Californians another boatload of money.

Although we are excited about regulation, licensing and legality, do not be fooled – criminal penalties for violating these new laws still exist.

Under MMRSA, who can be held criminally liable?  

Businesses, operating without a license. So you don’t want to get a license? You may not have to. Exemptions from licensing requirements apply to individual patients who cultivate, possess, or transport exclusively for personal medical use and caregivers who provide for individual patients. Rule of thumb – a license is needed for commercial activity only, defined as providing to more than five (5) patients. Six (6) or more, you’ve got yourself a business and the need for a license.

Fines Associated With Violating MMRSA.

Regulations mean more rules. More rules mean more rules to break. Under MMRSA, any person caught engaging in cannabis activity without a license and tracking information can be fined up to twice the cost of a license for each violation. Each day in operation without a license constitutes a separate violation, and yes, a separate fine for each day. If you think that hurts the wallet, the city can even order the destruction of all cannabis plants in the interim.

Hey, MMRSA, How Heavy of a Crime?

Unlicensed medical marijuana businesses (MMBs) will face the same criminal penalties as those in operation unlawfully today, which means – surprise, surprise! – it will still be a felony to produce medical cannabis commercially without a license. But this time when you waltz into court, you won’t be armed with the defense of being a “collective.” Businesses either have a license or they don’t – talk about the gray smoke clearing.

Not a Free for All – MMRSA Licensees Still Must Stand Scrutiny.

Lucky license holders must be on their best behavior! Failure to follow the rules creates grounds for disciplinary action, suspension and revocation of your license, and even shutting down your business.

MMRSA Creates a New Crime for Doctors

Hey, pot doc mills watch out! MMRSA has created a new crime – a misdemeanor. Doctors can be charged if they are found to be violating good practices in issuing recommendations.

Forget MMRSA, What About AUMA?

If passed, AUMA would permit all adults (21 years and older) to possess up to one ounce of marijuana, cultivate up to six plants, as well as process and transport marijuana.

Any adult in possession of more than these amounts can be charged with a crime, but unlike MMRSA, AUMA reduces most cannabis related crimes from felonies to misdemeanors. Hooray!!! And, AUMA even goes one step further, allowing prior offenders the chance to petition for a reduced charge!

Felonious – Recreational Marijuana Under 21

Although AUMA reduces crimes associated with adult use (hence the name), there are strict consequences for those considered “minors.” Minors (those under 21) who unlawfully possess or distribute cannabis will face mandatory community service and drug education courses, in addition to fines between $100 and $500, depending on the severity of the situation. Adults who employ or sell to minors will also face harsh felony criminal penalties, including imprisonment of up to 4 years.

Slowly but surely, the smoke is dissipating and we are beginning to uncover a clearer picture of marijuana law in California – Rome wasn’t built in a day. To be continued…

Disclaimer: This article has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice.