California Law on Concentrated Cannabis (Hashish)

Under California marijuana law, as amended by Proposition 64 (marijuana legalization) in 2016, adults 21 and older may legally possess or produce up to four (4) grams of concentrated cannabis (hashish) without breaking the law.

Possessing more than four grams of concentrated cannabis is a misdemeanor, punishable by up to six (6) months in county jail.

Possessing any amount of concentrated cannabis is an infraction if you are under 21.

Selling hashish and marijuana are only legal in California if you have a state license to do so. Without such a license, possessing hashish (or any form of marijuana) with the intent to sell it is a misdemeanor for most defendants.  So is unlawfully selling it or transporting it for sale.

What is concentrated cannabis?

“Concentrated cannabis” is the separated resin (whether crude or purified) obtained from the marijuana plant.  It is commonly referred to as “hashish” or “hash.”  It may also be called

  • “marijuana resin”
  • “hash oil”
  • “honey oil”
  • “rosin” or
  • “wax.”1

The resin contains marijuana's psychoactive ingredient, tetrahydrocannabinol (“THC”).

Concentrated cannabis can appear in several forms.  Imported hashish is often shaped into bricks. Locally produced concentrated cannabis, however, is more likely to appear as a liquid, irregular chunks, or a semisolid “goo.”

Concnetratedcannabis
The various forms of concentrated cannabis (also known as hash oil, marijuana resin, or hashish)
What are the rules about concentrated cannabis for medical marijuana users?

Under California marijuana law, people who are entitled to use medical marijuana may legally possess concentrated cannabis for their personal use. They may also produce it, as long as they do so without the use of chemical solvents, such as butane.

People entitled to use medical marijuana are not necessarily subject to the four-gram limit that recreational users must respect.

Penalties for concentrated cannabis offenses

Simple possession

Possession of up to four (4) grams of concentrated cannabis is legal.

For most defendants, the unlawful possession of more than four  grams of concentrated cannabis for personal use (“simple possession”) is a misdemeanor.2

If convicted of this offense, you face a maximum penalty of up to six (6) months in county jail and/or a five hundred dollar ($500) fine.3

Possession with intent to sell

Possession of hashish (or possession of any marijuana) with the intent to sell it is a misdemeanor for most defendants, unless you have a state license to sell marijuana products. If convicted, you face up to six (6) months in county jail.

However, possession with intent to sell concentrated cannabis without a license can be a felony for certain defendants. These are:

  1. Defendants who have a prior conviction for one of a list of particularly serious violent felonies or a sex crime that requires them to register as a sex offender;
  2. Defendants who have two (2) or more prior misdemeanor convictions for marijuana or concentrated cannabis possession for sale; or
  3. Defendants who possessed concentrated cannabis for sale in connection with a knowing sale or attempted sale to someone under 18.4

Unlawful production of hashish

The unlawful production of more than four (4) grams of hashish is a misdemeanor for most defendants. The penalty is up to six months in county jail.5 This is generally prosecuted under Health & Safety Code 11358 - cultivation of marijuana.

If you use a toxic chemical -- such as butane -- to produce the cannabis resin, you may also be found guilty of chemical extraction of a controlled substance.  If convicted, you face a fine of up to $50,000 and three, five or seven years in state prison.

Unlawful sale or transport of hashish

Selling hashish, or transporting it for sale, without a state license to do so is a misdemeanor for most defendants and will carry a county jail sentence of up to six (6) months.

But unlawful sale/transport for sale of concentrated cannabis is a felony (with a potential jail sentence of two (2), three (3) or four (4) years) for any of the following defendants:

  1. Defendants who have a prior conviction for one of a list of particularly serious violent felonies or a sex crime that requires them to register as a sex offender;
  2. Defendants who have two (2) or more prior convictions for HS 11360 sale/transportation of marijuana; 
  3. Defendants who knowingly sold, attempted to sell, or offered to sell or furnish concentrated cannabis to someone under 18; and
  4. Defendants who imported or attempted or offered to import into California, or transported or attempted/offered to transport out of California for sale, more than four grams of concentrated cannabis.6
Can I receive drug treatment in lieu of jail time?

You may be eligible for drug treatment instead of jail time if you are a non-violent first- or second- time offender.  In order to be eligible, the charges must be limited to simple possession or production for personal use of more than four grams of hashish.

Upon successful completion of drug treatment and any other conditions imposed by the court, the charges against you will be dismissed.

Defenses to hashish-related charges

Just because you are arrested for the sale or possession of concentrated cannabis, doesn't necessarily mean the charges be sustained in court.

Legal defenses to charges of possession and/or production of hashish include:

  • the hashish belonged to someone else;
  • you didn't know the hash was there;
  • you didn't know that it was hashish;
  • you are legally entitled to use medical marijuana;
  • you are the primary caregiver for a medical marijuana patient; or
  • the hash was found during an illegal search and seizure.

Defenses to charges of importing hashish or the unlawful sale, transport, or possession of it with intent to sell may include, in addition to the foregoing:

  • the hashish was intended solely for your personal use;
  • there is insufficient evidence of your intent to import/sell the hashish,
  • there is insufficient evidence that an actual sale took place, or
  • the police engaged in entrapment or other misconduct.
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Marijuana laws can be quite complicated, especially where concentrated cannabis is concerned.

Our attorneys include former cops and prosecutors who have helped thousands of people successfully defend against drug-related charges.

To help you better understand the nuances of the laws relating to concentrated cannabis, our California criminal defense attorneys discuss the following, below:

  1. The legal definition of concentrated cannabis -- California Health and Safety Code 11018
  2. California's medical marijuana law and concentrated cannabis
    1. Medical marijuana and the Compassionate Use Act of 1996 (Prop. 215)
    2. The legal definition of “serious medical condition”
    3. The legal definition of “primary caregiver”
    4. Medical marijuana cards
  3. Legal and unlawful possession of concentrated cannabis - California Health and Safety Code 11357
    1. What constitutes possession of concentrated cannabis?
      1. “Actual possession”

      2. “Constructive possession”

    2. Knowledge of the presence of concentrated cannabis
    3. Knowledge of the nature of a substance as concentrated cannabis
  4. Legal and unlawful production of concentrated cannabis
    1. Producing a controlled substance by chemical extraction
    2. What constitutes “chemical extraction” of hashish?

    3. Legal methods of producing concentrated cannabis

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1. The legal definition of concentrated cannabis -- California Health and Safety Code 11018 HS

California law defines “marijuana” to include the resin extracted from any part of the cannabis plant.7 So, concentrated cannabis (hashish) constitutes marijuana under California law.

As we shall see, however, some laws expressly single out hashish for slightly different treatment than other forms of marijuana.

2. California's medical marijuana law and concentrated cannabis
2.1 Medical marijuana and the Compassionate Use Act of 1996 (Prop. 215).

Concentrated cannabis is considered medical marijuana under the “Compassionate Use Act of 1996” (the “CUA”).8 The CUA was passed into law by voter approval of Proposition 215.9 It is set forth in California Health and Safety code 11362.5 and subsequent sections.

Under the CUA, people who use marijuana upon a physician's recommendation are exempt from California laws limiting possession and processing of concentrated cannabis.10 Specifically, this means that you are not subject to the four-gram limit on concentrated cannabis possession if you have legitimate medical reasons to possess or produce more.

Primary caregivers of such patients are also exempt from such laws, to the extent they possess or give concentrated cannabis to such patients for their personal use.

2.2  The legal definition of “serious medical condition”

California Health and Safety Code 11362.7 defines a “serious medical condition" as:

  • Acquired immune deficiency syndrome (AIDS)
  • Anorexia
  • Arthritis
  • Cachexia [wasting syndrome]
  • Cancer
  • Chronic pain
  • Glaucoma
  • Migraine
  • Persistent muscle spasms, including, but not limited to, spasms associated with multiple sclerosis
  • Seizures, including, but not limited to, seizures associated with epilepsy
  • Severe nausea
  • Any other chronic or persistent medical symptom that either:
  1. Substantially limits the ability of the person to conduct one or more major life activities as defined in the Americans with Disabilities Act of 1990 (Public Law 101-336), or
  2. If not alleviated, may cause serious harm to the patient's safety or physical or mental health.11
2.3  The legal definition of “primary caregiver”

The CUA defines a “primary caregiver” as an individual designated by the patient, who consistently assumes responsibility for the patient's housing, health, or safety.12

In order to legally qualify as a primary caregiver, someone must:

  1. consistently provided care to the patient
  2. which is independent of assistance given to the person in taking medical marijuana
  3. must have commenced taking care of the patient at or before the time he/she assumed responsibility for assisting with medical marijuana.13
2.4 Medical marijuana cards
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It is not necessary to have a medical marijuana card in order to enjoy the benefits of the CUA.14 If you are arrested for possession or production of cannabis for your personal use outside of the limits set forth in California's recreational marijuana law, proof of medical necessity is a defense to the charges.

However, having a validly issued and current medical marijuana card protects you from being arrested in the first place.  An officer may not arrest anyone with a card for simple possession of more than four grams of concentrated cannabis unless the officer has reason to believe that:

  1. the information on the card is false
  2. the card was fraudulently obtained
  3. the holder of the card is otherwise violating the law (for instance, by possessing more hashish than is consistent with reasonable medical use, or possessing it with the intent to sell it).15

For information on obtaining a medical marijuana card visit the California Department of Health, Medical Marijuana Program.

3. Legal and unlawful possession of concentrated cannabis

California Health and Safety Code 11357 prohibits the simple possession of marijuana, including concentrated cannabis, in small quantities. Specifically, it permits people who are 21 and older to possess or process for personal use up to four (4) grams of concentrated cannabis.16

In order for you to be convicted of simple concentrated cannabis possession, the prosecutor must prove that:

  1. you possessed more than four grams of concentrated cannabis
  2. you knew it was present
  3. you knew of its character as concentrated cannabis17

Let's take a closer look at these elements.

3.1 What constitutes possession of concentrated cannabis?

Under California law, "possession" may be  “actual” or “constructive.”

3.1.1 “Actual possession”

You have “actual” possession of concentrated cannabis when:

  1. you are holding it
  2. it is in something you are wearing or holding, such as your jacket or your purse

However, you do not have to hold or touch concentrated cannabis, or have it on your person, in order to have possession of it.  You may also have “constructive possession” of it.

3.1.2 “Constructive possession”

You have “constructive" possession of hashish when you have the right to control it, either on your own or with another person or people.18 Under the law, multiple people are able to possess something at the same time.

Examples of constructive possession:

  1. You keep half an ounce of hashish in your locker at school.  Even when you aren't at school or using your locker, you constructively possess any drugs that are in it.
  2. One of your roommates keeps several ounces of hash in a box underneath the living room sofa.  Even though the hash isn't yours, because you and your roommates share control of the living room and the sofa, you are deemed to have constructive possession of the hash.
  3. A friend leaves a suitcase containing a large quantity of hashish in the trunk of your car.  Since the car is yours, you are deemed to have constructive possession of the hash inside the trunk.

Keep in mind, that even if you are deemed to possess someone else's drugs, possession is just one of the elements the prosecutor must prove.

3.2 Knowledge of the presence of concentrated cannabis

You cannot be convicted of possessing more than four grams of concentrated cannabis if you possessed hashish but didn't know it.  Perhaps someone put a chunk of it in your backpack when you weren't looking.  Or maybe a friend accidentally left it in the backseat of your car.  Whatever the reason, if you didn't know the hash was there, you aren't guilty of unlawful possession.

It is not your responsibility to prove that you didn't know about the presence of the hash. The burden is on the prosecutor to prove that you did know.19

If you were caught holding the hash, this may be fairly easy for the prosecutor to prove.  Otherwise, knowledge of possession may be demonstrated by circumstantial evidence, including evidence of other crimes or misconduct.20

Example: Let's return to the second example, above.  If your roommate is keeping a secret stash under the sofa, it might be difficult to prove you knew anything about it.  But if another of your roommates testifies that everyone in the house saw him put the box under the sofa, the jury could reasonably infer you knew about the drug's presence.

3.3. Knowledge of the nature of what you possessed as concentrated cannabis

It is not enough that you knew that the excessive quantity of hashish was present.  If you didn't know what it was, you are not guilty of unlawful possession.

Note that this doesn't mean you have to know what the drug is called, or even that it is specifically concentrated cannabis.  It is enough that you knew that it was an illegal drug, no matter what you thought it was or what you called it.21

Circumstantial evidence may be used to establish that you knew that what you possessed was an illegal drug. This may include the testimony of others, or the introduction of evidence of prior narcotics crimes.22

Example:  The friend who leaves a suitcase in your car testifies that she told you to look after her hash for it.  If the jurors believe her testimony, they can reasonably find you knew that what you possessed was concentrated cannabis.

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4. Legal and unlawful production of concentrated cannabis

Health and Safety Code 11358 makes it a misdemeanor for most defendants to produce more than four grams of concentrated cannabis unless you are a medical marijuana user or legal provider.23

To prove that you are guilty of unlawfully producing concentrated cannabis, the prosecutor must prove that:

  1. you unlawfully processed one or more marijuana plants
  2. you knew that the substance you processed was marijuana.24
4.1 Producing a controlled substance by chemical extraction

California Health & Safety Code 11379.6 (drug manufacturing) makes it a felony to engage in the chemical extraction of a substance as part of the process of manufacturing a controlled substance.25

Concentrated cannabis is a Schedule 1 hallucinogenic controlled substance under California law.26 So it is illegal to produce hashish from marijuana by means of chemical extraction.

The right to produce concentrated cannabis for personal recreational or medical use is NOT a defense to charges of chemical extraction of a controlled substance.  If you use chemical extraction to make hash, you are guilty of violating Health & Safety Code 11379.6, whether or not you are legally entitled to produce hashish.

4.1.1 Legal methods of producing concentrated cannabis

The California Court of Appeal has suggested that the following methods of physically extracting resin from a marijuana plant would not violate HS 11379.6:

  • pressure
  • screening
  • ice water
  • dissolving the plant in a nonchemical lipid extractor, such as butter27

Note, however, that even if you use one of these methods, you may still be prosecuted for illegally producing more than four grams of concentrated cannabis if you are not a medical marijuana user or primary caregiver.

4.1.2 What constitutes “chemical extraction” of hashish?

Chemical extraction of hashish means using a hazardous substance or toxic chemical to produce resin from the marijuana plant.  At least one California court has specifically ruled that butane constitutes such a substance.28

Other than butane, California courts have not ruled on the legality of specific substances.  However, the purpose of HS 11379.6 is to protect the public from hazards resulting from the use of toxic chemicals.  Such hazards include fires, fumes, explosions, environmental damage and increased risk to law enforcement officers.29

Therefore, if a chemical is highly flammable or considered toxic, a court would likely find that its use in the extraction of hashish violates California law.

5. Possession of concentrated cannabis with intent to sell it

Under California Health and Safety Code 11359, it is a misdemeanor for most defendants to possess concentrated cannabis with the intent to sell it unless one has a license for marijuana sales pursuant to Proposition 64.30

As with simple possession, the prosecutor must prove that:

  1. you possessed hashish
  2. you knew you had it
  3. you knew what it was.31

But the prosecutor must also prove that you intended to sell it (without a license to do so, i.e., on the black market).32 Intent may be established by evidence such as:

1. Your statements.

Example:  You told a friend you were going to make a lot of money when you sold your hash.

2. Circumstantial evidence

Circumstantial evidence of intent to sell might include the presence of items such as:

  • scales
  • cash
  • customer lists
  • packaging materials33

Multiple packages and quantities of hash in excess of what might reasonably constitute personal use would also be evidence of such intent.34

Note that the legal right to produce hash for medical use will not protect you if a jury determines you had more than you reasonably needed for your medical condition.

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Example: During a routine traffic stop, the police detect the odor of hashish and search your car.  They find over 100 chunks of concentrated cannabis, each weighing the same amount and stamped with the same symbol.

6. Sale/transport for sale of concentrated cannabis

California Health and Safety Code 11360 makes it a misdemeanor (for most defendants) to:sell, or transport for sale, concentrated cannabis without a valid marijuana sales license.35

To prove that you violated this law, the prosecution must prove that:

  1. you sold concentrated cannabis in California without a license, or transported it intending that it would be sold on the black market,
  2. you knew of its presence
  3. you knew of its nature as a controlled substance.36

The purchase of hashish from an unlicensed seller is not a crime under Section 11360.  Only selling – or aiding and abetting a sale (not a purchase) is punished under this law.37

Medical marijuana patients and their primary caregivers are exempted from some parts of Section 11360.38 

Furthermore, marijuana collectives or cooperatives (dispensaries) and their members may give or sell concentrated cannabis to each other, provided that they adhere to certain legal requirements.  These include, among other things, that they not make a profit from such sales.39

For more information on medical marijuana dispensaries, see How to Open a Medical Marijuana Dispensary: the Laws in California.

7. Penalties for crimes involving concentrated cannabis
7.1 Unlawful possession of hashish for personal use

Unlawful possession of more than four (4) grams of concentrated cannabis for personal use (“simple possession”) is a misdemeanor in most cases.

For adult defendants, it is punishable by:

  1. a fine of not more than five hundred dollars ($500)

    and/or

  2. up to six (6) months in county jail.40

Defendants under 18 who possess more than four grams of hashish will only face an infraction.

People under the age of twenty-one (21) who possess any amount of concentrated cannabis violate HS 11357. However, this violation is only a California infraction. It is punishable by a $100 fine for defendants over 18, and by drug counseling and community service for defendants under 18.41

7.2 Unlawful production of hashish

The unlawful production of more than four grams of hashish is a misdemeanor for most defendants. The penalty is up to six months in county jail.

But some defendants will be charged with a felony for unlawful production of more than four grams of hashish. This penalty scheme applies to:

  • People with serious violent felonies on their record;
  • Registered sex offenders; 
  • Defendants who have two (2) or more prior convictions for production of excessive amounts of hashish or cultivation of excessive amounts of marijuana.42
7.3 Producing concentrated cannabis by chemical extraction - California Health and Safety Code 11379.6

Production of hashish by chemical extraction is a felony. The penalties for it are:

  1. imprisonment of three, five, or seven years in county jail
  2. a fine not exceeding fifty thousand dollars ($50,000)43

Your sentence will, however, be served in California state prison rather than county jail if:

  • you have a current or prior conviction for a serious or violent felony
  • you are required to register as a California sex offender
  • you are subject to a sentencing enhancement for committing multiple felonies44
7.4 Possessing concentrated cannabis with intent to sell it

Possessing concentrated cannabis with the intent to sell it without a license is a misdemeanor for most defendants, punishable by up to six (6) months in county jail.

But hashish possession for illegal sale is a felony for some defendants--those who:

  1. Have a prior conviction for one of a list of particularly serious violent felonies or a sex crime that requires them to register as a sex offender;
  2. Have two (2) or more prior misdemeanor convictions for marijuana or concentrated cannabis possession for sale; or
  3. Possessed concentrated cannabis for sale in connection with a knowing sale or attempted sale to someone under 18.

For those defendants, the felony sentence will be 16 months, or two or three years in county jail, and/or a fine of up to $20,000.45

7.5 Unlawful sale or transport for sale of hashish

Selling hashish without a license, or transporting it with intent to sell it without a license is a misdemeanor for most defendants, punishable by up to six months in county jail.  

But unlawful hashish sales is a felony for the following defendants:

  1. Defendants who have a prior conviction for one of a list of particularly serious violent felonies or a sex crime that requires them to register as a sex offender;
  2. Defendants who have two (2) or more prior convictions for HS 11360 sale/transportation of marijuana; 
  3. Defendants who knowingly sold, attempted to sell, or offered to sell or furnish concentrated cannabis to someone under 18; and
  4. Defendants who imported or attempted or offered to import into California, or transported or attempted/offered to transport out of California for sale, more than four grams of concentrated cannabis.

These defendants face

  1. a county jail sentence of two, three or four years,46 and/or
  2. a fine of up to $20,00047
7.6 Drug treatment in lieu of jail time

Non-violent first- and second-time offenders who are arrested for simple possession or production of more than four grams of hashish for personal use may be eligible for diversion to a drug treatment program.

There are two legal statutes which authorize such diversion.  Each has different eligibility requirements and consequences.

In the event that you qualify under both, an experienced criminal defense attorney can help you determine which is right for you.

7.6.1 Deferred entry of judgment (DEJ) -- California Penal Code 1000 PC

If your arrest is for either possession or production of more than four grams of hashish solely for personal use, you may be eligible to have sentencing held off while you complete drug treatment.  This is known as “deferred entry of judgment (DEJ)”.

To receive deferred entry of judgment under PC 1000, you must plead guilty to the charges and file a presentencing petition with the judge.

If the judge grants your petition, your sentencing will be put on hold while you receive drug treatment for at least 18 months (but not more than three years).

Upon receipt of proof that you have successfully completed such treatment, the judge will dismiss your case.  Once your case is dismissed, the arrest ceases to exist for most purposes.  Most importantly, you will not need to disclose it on most job, housing and similar applications.48

You are ineligible for DEJ under Penal Code 1000 PC if:

  1. you have a prior conviction for any offense involving a controlled substance
  2. you have been charged with a crime of violence or threatened violence
  3. there is evidence that your violation includes certain crimes involving serious narcotics
  4. you have ever had probation or parole revoked for not completing its terms
  5. you have received DEJ under PC 1000 within the previous five years
  6. you have been convicted of a felony within the previous five years49

You may be required to undergo analysis of your urine while participating in a drug treatment program under PC 1000.  However, the results of such urine analysis are not admissible as the basis for any new criminal prosecution.50

7.6.2 Proposition 36 -- the "Substance Abuse and Crime Prevention Act of 2000”

You do not always need to plead guilty and receive a DEJ in order to receive drug treatment instead of jail time.

Under Proposition 36 -- the "Substance Abuse and Crime Prevention Act of 2000 – the judge is required to sentence eligible non-violent first- and second-time offenders accused of simple possession of drugs to treatment.51 You are eligible for Prop. 36 sentencing even if you filed a petition for DEJ and it was denied.

Prop. 36 sentencing differs from a PC 1000 DEJ in several important respects:

  1. You are not eligible for Prop. 36 sentencing if you are convicted of producing more than four grams of concentrated cannabis. Prop. 36 applies to simple possession only.
  2. You do not need to plead guilty to be eligible for Prop. 36 diversion.
  3. DEJ under PC 1000 is a presentencing disposition.  Prop. 36 applies only after you have pleaded guilty or no contest to, or been found guilty of, simple possession.
  4. Permitting drug treatment under PC 1000 falls within the judge's discretion.  Under Prop. 36, on the other hand, the judge must sentence you to drug treatment if you qualify.
  5. Under Prop. 36, you will be sentenced to probation.  Drug treatment is just one condition of your probation.  There may be others, such as counseling or community service.  If you fail to meet any condition of probation, the judge may sentence you to jail time.
  6. Prop. 36 treatment generally lasts for just one year, rather than the 18 months required under PC 1000.
  7. Upon completion of drug treatment under Prop. 36, the judge will conduct a hearing.  If the judge determines that you have failed to comply with any of the conditions of your probation, or that you are likely to use drugs again, he/she may sentence you to jail.52

Provided you have successfully completed drug treatment and any other conditions of probation, the judge will dismiss your case and set your conviction aside.

8. Legal defenses to concentrated cannabis charges

Legal defenses to hashish-related charges include:

  • you didn't possess excessive amounts of hashish

Example:  Janet sells her car to a stranger.  Half a pound of hashish is later discovered in the car.  Because Janet no longer has the right to control the car, she did not possess the hashish (although if the car is still registered in her name, Janet may need to offer proof that she sold it).

  • you didn't know the hash was there

Example:  Robert's old college roommate comes to visit him from out of town.  Robert lets his old friend crash on his living room sofa.  Unbeknownst to Robert, the roommate has brought several ounces of concentrated cannabis with him.  Unless the prosecutor can prove that Robert knew about the hash, Robert is not guilty of possession.

  • you didn't know that it was hashish

Example: Taking the above example, let's say that Robert saw his friend put a dark bottle in the refrigerator, but the friend told him it was wheat grass juice.  If Robert's story is credible and there is no evidence to contradict it, Robert has a good defense a charge of possession.

  • you are legally entitled to use medical cannabis

You do not need to have a medical marijuana card or written prescription in order to raise a medical necessity defense.  However, the burden is on you to show that you are legally entitled to use medical marijuana.

To use a medical necessity defense, you will need to prove that:

  1. you have a serious medical condition (as defined in the CUA)
  2. a physician recommended or approved cannabis for its treatment

Example:  Antoine uses concentrated cannabis for relief from migraine headaches. His medical needs require him to have almost an ounce of concentrated cannabis in his possession at any given time. He does not have a medical marijuana card.  However, his doctor testifies that Antoine has been unable to obtain relief with other drugs, and that she would have prescribed marijuana to Antoine if it were legal.53

  • you are the primary caregiver for a medical marijuana patient

To use this defense, you must establish that:

  1. you meet the definition of a primary caregiver under the CUA
  2. the person for whom you provide care has a legal right to use medical marijuana

Example:  Antonia helps look after Alice, an elderly woman suffering from cancer.  She handles light chores for Alice, such as food preparation and shopping.  She also gives Alice her medications, which include concentrated cannabis. Alice's dosage requirements sometimes exceed four grams.  Since Antonia is a primary caregiver for Alice under the CUA, she is not guilty of giving Alice cannabis in violation of California law.

  • the hash was found during an illegal search

The Fourth Amendment to the U.S. Constitution as well as California state search and seizure laws protect residents against unreasonable searches and seizures.  If concentrated cannabis was found as the result of an illegal search, you cannot be convicted of any crime based on its presence.

Example:  A large amount of concentrated cannabis was found in your car after the police stopped you for running a red light.  You weren't drunk or high, you held a valid license and registration, and you cooperated with the police.  Unless you consented to the search, the cops had no right to search your car.  The judge should throw out the cannabis-related charges.

  • the hashish was intended solely for your personal use

Example:  Bill is busted in San Diego for having 10 bottles of hash oil.  The prosecutor charges Bill with possession of concentrated cannabis with the intent to sell it without a license.  But Bill lives in San Francisco and is visiting his daughter in San Diego for two months. If he can convince the prosecutor he normally goes through a bottle of hash oil in a week, he may be able to get the charge knocked down to simple possession. Or if the case goes to trial, he may be found not guilty.

  • the sale of the hashish was lawful

Example: Petra is busted for selling concentrated cannabis to a marijuana dispensary of which she is a member.  The prosecutor charges her with unlawfully selling the hash for profit without a state license.  If Petra has receipts showing the price was roughly equivalent to her costs, the charges will likely be dropped, or she will be found not guilty.

  • there is insufficient evidence that an actual sale took place

Conviction of unlawfully selling concentrated cannabis requires an actual transfer of money or an offer to sell.  If neither of these happened, there was no sale.

Example:  A cop overhears Alejandro brags to some of his friends that he just made a big bunch of hash and could make a ton of money if he sold it.  Eduardo offers to buy some from Alejandro and names a price. The cop busts Alejandro for selling concentrated cannabis without a license.  Unless he can prove that Alejandro actually meant his boast as an offer to sell, Alejandro has a defense to the charges.

  • the police engaged in entrapment or other misconduct

Example:  Let's say that in the above example, Eduardo is actually an undercover cop and Alejandro accepts his offer.  By offering to buy the hash from Alejandro, the cop may have engaged in entrapment.  If Alejandro is charged with selling concentrated cannabis, the charges might be thrown out for this reason.  However, if Alejandro actually showed the drugs to Eduardo when he boasted about it, he might still be guilty of possession.

9. The Federal Controlled Substances Act -- 21 USC 81
9.1 Conflict with California law

21 USC 81 is the federal Controlled Substances Act (“CSA”).  The CSA classifies marijuana and THC as illegal Schedule 1 hallucinogenic drugs.54 This means that, in the opinion of the federal government, they have a high potential for abuse and no currently accepted medical use.55

Under the Supremacy Clause of Article VI of the United States Constitution, federal law takes precedence over conflicting state law.  The CSA makes it illegal to possess, produce, or sell Schedule 1 drugs.  The U.S. Supreme Court has upheld Congress' power to prohibit even the purely intrastate cultivation and possession of marijuana.56

9.2 Simple (misdemeanor) possession of concentrated cannabis under federal law

Simple possession of concentrated cannabis is a misdemeanor under the CSA.57 Penalties for first-time drug offenders include up to one year imprisonment and/or a fine of up to $1,000.  These amounts increase for those with prior state or federal drug convictions.

As a practical matter, however, the federal government does not prosecute individual patients who comply with state laws on the use of medical or recreational marijuana.58 Even recreational users who possess more concentrated cannabis than is allowed by California's recreational marijuana law face little risk of federal incarceration.59 According to the White House, the vast majority (99.8 percent) of federal prisoners sentenced for drug offenses have been convicted of drug trafficking.60

9.3 Production or sale of concentrated cannabis under federal law

Distributors of large amounts of concentrated cannabis on the black market are more likely to be the targets of federal investigation and prosecution.  This includes marijuana dispensaries, particularly those suspected of selling to recreational users, or operating for profit.

Producing or selling concentrated cannabis (or possessing it with the intent to sell it) is a felony under federal law.  Penalties for individuals with no prior drug convictions include up to five years imprisonment and fines of up to $250,000.61 Penalties for organizations or subsequent convictions are even higher.

9.4 Application of the CSA on federal property and HUD housing

Federal law – not state law -- applies on federally owned property within California.  Therefore, even people legally entitled to possess medical or recreational marijuana should avoid bringing it onto federal property, such as airports, post offices and national parks.

Additionally, the U.S. Department of Housing and Urban Development (“HUD”) permits local housing authorities to set their own policies on marijuana use.  Many don't allow it in HUD housing.  Although rarely enforced, discovery of medical or recreational marijuana in HUD housing subjects users to the loss of food stamps and other federal benefits.62

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For more information about California's drug laws, or to discuss your case confidentially with one of our criminal defense attorneys, please don't hesitate to contact us at Shouse Law Group. Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada's marijuana laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.


Legal References:

1 Other names include butane hash oil (BHO), errl, earwax, budder, shatter, full melt, and rosin.  See, e.g., History of Cannabis Extractions.

2 California Health and Safety Code 11357 (b) HS (as amended by Proposition 64).

3 Same.

4 California Health and Safety Code 11359 (as amended by Proposition 64).

5 California Health and Safety Code 11358 (as amended by Proposition 64).

6 California Health and Safety Code 11360(a) (as amended by Proposition 64).

7 California Health and Safety Code § 11018.   “Marijuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin…”

8 See Opinion of the Attorney General, 86 Ops. Cal. Atty. Gen. 180 (October 21, 2003) (“Concentrated cannabis or hashish is included within the meaning of ‘marijuana' as that term is used in the Compassionate Use Act of 1996.”).

9 The Compassionate Use Act of 1996 is codified in Health and Safety Code § 11362.5 and subsequent sections.

10 California Health and Safety Code § 11362.5(d) HS:  Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.

11 California Health and Safety Code 11362.7(h).

12 California Health and Safety Code 11362.5(e). For the purposes of this section, "primary caregiver" means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health,or safety of that person.

13 People v. Mentch (2008) 45 Cal.4th 274 (“[A] defendant asserting primary caregiver status must prove at a minimum that he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana.”).

14 California Health and Safety Code 11362.71(f). It shall not be necessary for a person to obtain an identification card in order to claim the protections of Section 11362.5.

See also People v. Kelly (2010) 47 Cal.4th 1008, 222 P.3d 186 (“Whether or not a person entitled to register under the MMP elects to do so, that individual, so long as he or she meets the definition of a patient or primary caregiver under the CUA, retains all the rights afforded by the CUA.”).

15 California Health and Safety Code 11362.71 (e) No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article, unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article.

16 California Health and Safety Code § 11357(b), endnote 2.

17 Judicial Council of California Criminal Jury Instructions (CALCRIM) 2377. Simple Possession of Concentrated Cannabis (Health & Saf. Code, § 11357(a)).

The defendant is charged [in Count ] with possessing concentrated cannabis, a controlled substance [in violation of Health and Safety Code section 11357(a)].

To prove that the defendant is guilty of this crime, the People must prove that:

  1. The defendant [unlawfully] possessed concentrated cannabis;
  2. The defendant knew of its presence;
  3. The defendant knew of the substance's nature or character as concentrated cannabis…

18 Same.  “[A person does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.]”

19 See, e.g., People v. Thompson (1972) 25 Cal.App.3d 132, 101 Cal.Rptr. 683

20 See same.

21 See People v. Garringer 48 Cal. App. 3d 827 (“The only knowledge that is required to sustain the conviction is knowledge of the controlled nature of the substance. (Russell v. Superior Court, 12 Cal. App. 3d 1114, 1117 [91 Cal.Rptr. 255].) The defendant need not know the chemical name or the precise chemical nature of the substance. “).

22 See e.g., People v. Gonzales (1960) 186 Cal.App.2d 79, 8 Cal.Rptr. 704 (“Knowledge of the narcotic character of the substance is an essential element of narcotics crimes, and thus evidence of prior narcotics crimes is admissible for the limited purpose of showing the defendant's knowledge…”).

23 California Health and Safety Code § 11358, endnote 5.

24 CALCRIM 2370. Planting, etc., Marijuana (Health & Saf. Code, § 11358).

25 California Health and Safety Code  11379.6.(a): Except as otherwise provided by law, every person who manufactures, compounds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance specified in Section 11054,11055, 11056, 11057, or 11058 shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for three, five, or seven years and by a fine not exceeding fifty thousand dollars ($50,000).

26 California Health and Safety Code § 11007: “Controlled substance,” unless otherwise specified, means a drug, substance, or immediate precursor which is listed in any schedule in Section 11054, 11055, 11056, 11057, or 11058.

California Health and Safety Code §11054(d): Hallucinogenic substances. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation, which contains any quantity of the following hallucinogenic substances, or which contains any of its salts, isomers, and salts of isomers whenever the existence of those salts, isomers, and salts of isomers is possible within the specific chemical designation (for purposes of this subdivision only, the term “isomer” includes the optical, position, and geometric isomers):

…(13) Marijuana.

…(20) Tetrahydrocannabinols. Synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, sp. and/or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as the following: delta 1 cis or trans tetrahydrocannabinol, and their optical isomers; delta 6 cis or trans tetrahydrocannabinol, and their optical isomers; delta 3,4 cis or trans tetrahydrocannabinol, and its optical isomers.

27 See People v. Bergen (2008) 166 Cal.App.4th 161, 82 Cal.Rptr.3d 577.

28 People v. Bergen, endnote 27.

29 Report to the Senate Committee on the Judiciary (Sen. Com. on Judiciary, com. on Assem. Bill 3165 (1983–1984 Reg. Sess.) pp. 2–3.)

30 California Health and Safety Code 11359, endnote 4.

31 CALCRIM 2352. Possession for Sale of Marijuana (Health & Saf. Code,§§ 11018, 11359).

32 Same.

33 See, e.g., People v. Glass (1975) 44 Cal.App.3d 772, 118 Cal.Rptr. 797.

34 See, e.g., People v. Harris (2000) 83 Cal.App.4th 371, 99 Cal.Rptr.2d 618.

35 California Health and Safety Code 11360(a), endnote 6.

36 CALCRIM 2350. Sale, Furnishing, etc., of Marijuana (Health & Saf. Code, § 11360(a)).

37 See, e.g., People v. Lamb (1955) 134 Cal.App.2d 582, 285 P.2d 941.

38 People v. Trippet (1997) 56 Cal.App.4th 1532, 66 Cal.Rptr.2d 559 (“…the quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient's current medical needs. What precisely are the “patient's current medical needs” must, of course, remain a factual question to be determined by the trier of fact. One (but not necessarily the only) type of evidence relevant to such a determination would be the recommending or approving physician's opinion regarding the frequency and amount of the dosage the patient needs.”)

39 California Health and Safety Code 11362.765(a).

40 California Health and Safety Code § 11357(b), endnote 2.

41 California Health and Safety Code § 11357(a).

42 California Health and Safety Code 11358, endnote 5.

43 Same, and California Penal Code 1170 (h)(3).

44

45 California Health and Safety Code 11372(a). In addition to the term of imprisonment provided by law for persons convicted of violating Section … 11359, 11360, or 11361, the trial court may impose a fine not exceeding twenty thousand dollars ($20,000) for each offense. In no event shall a fine be levied in lieu of or in substitution for the term of imprisonment provided by law for any of these offenses

46 California Health and Safety Code 11360(a), endnote 6.

47 California Health and Safety Code 11372(a), endnote 45.

48 California Penal Code 1000.4.

49 California Penal Code 1000(a).

50 California Penal Code 1000(e).

51 California Penal Code section 1210 and 1210.1 PC.

52 Same.

See also People v. Hinkel (2005) 125 Cal.App.4th 845, review denied Apr. 13, 2005 (“[A] trial court may deny a probationer's dismissal motion where it finds no reasonable cause to believe the person will not abuse drugs in the future.”).

53 See, e.g., People v. Trippet (1997), endnote 38 (holding that physician who testifies he would have prescribed marijuana for defendant's migraine headaches if it were legal, has given tacit approval of cannabis use under the CUA).

54 21 U.S. Code 81(c), Schedule I (c)(10) [marijuana] and (17) [THC].

55 21 U.S. Code 81(b)(1).

56 Gonzales v. Raich (2005) 545 U.S. 1.

57 21 U.S. Code 844(a).

58 See the Deputy Attorney General’s Memorandum for selected U.S. Attorneys regarding Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana, October 19, 2009.

59 See, e.g., Americans for Safe Access Now, Federal Marijuana Policy.

60 Office of National Drug Policy, Answers to Frequently Asked Questions about Marijuana.

61 21 U.S.C. §841(b).

62 California NORML, Patients' Guide to Medical Marijuana Law in California.

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