California Proposition 64 Legalized Marijuana – Does This Mean I Can Buy and Smoke Weed Now?

Posted by Neil Shouse | Jan 09, 2017 | 0 Comments

On November 8, 2016, California voters approved Proposition 64, also known as the Adult Use of Marijuana Act (“AUMA”)

Prop 64 makes it legal for adults aged 21 and over to buy and use recreational marijuana in California.

California is now one of eight U.S. states in which the recreational use of marijuana by adults is, or will soon be, legal.[1]

In addition to hundreds of other provisions, AUMA also reduces many former marijuana felonies to misdemeanors and allows prior offenders to petition to have their charges reduced. It further imposes a state excise tax of 15% on all retail sales (including medical marijuana) and a cultivation tax in the amount of $9.25 per ounce of flowers and $2.75 per ounce of leaves.

When Can I Start Using Recreational Marijuana in California?

As of November 9, 2016, the recreational use of marijuana by adults is, with certain restrictions, fully legal in California.

However, unless you are a medical marijuana user, it is likely to be at least 6 months before anyone can legally sell you recreational weed. This is because state and local governments still need to establish regulations for the retail sale of marijuana and to issue business licenses. Estimates are that the soonest this is likely to happen is mid-2017 and maybe as late as Jan. 1, 2018.

Additionally, under AUMA, counties and cities may restrict where retail marijuana businesses can be located or even ban such sales entirely. Doing so may, however, cause local governments to lose state grants for law enforcement, fire protection, or other public health and safety programs.

In the meantime, however, California medical marijuana users can continue to purchase weed from businesses licensed to sell medical marijuana.

How Much Marijuana Can I Possess Under Prop 64?

AUMA allows adults aged 21 and older to possess legally:

Possession of more than these quantities of weed in California is a misdemeanor, punishable by up to six months in county jail and/or a fine of up to $500.

If you are under 21, possessing any amount of marijuana is an infraction. If caught, you can be sentenced to drug counseling and/or community service. In addition, if you are between the ages of 18 and 20 inclusive, you may also be assessed a fine.

Where in California Can I Possess or Use Marijuana?

Proposition 64 allows adults to use marijuana in a private home (though homeowner's associations may legally prohibit such use). You will also be permitted to use marijuana at businesses licensed for on-site marijuana consumption once licenses have been issued.

It is still illegal, however, to use weed in public, while driving, or anywhere that smoking tobacco is prohibited. In addition, employers may legally prohibit the use of marijuana at work.
California law also prohibits you from possessing or using marijuana inside or on the grounds of any K-12 school, day care center, or youth center while children are present.

If you are 18 or older, possessing marijuana at a California school, youth center or daycare center is a misdemeanor. Penalties include a fine of up to $250 for a first offense.
Minors under 18 who possess weed at a school are guilty of an infraction, punishable by community service and/or counseling.

How much marijuana can I legally grow in California?

Adults may now grow up to six marijuana plants within a private home in California, as long as the area is locked and not visible from a public place.

Growing more marijuana than this is a misdemeanor for most adults. It can be punished by up to six (6) months in county jail and/or a fine of up to five hundred dollars ($500).

Marijuana cultivation is a felony in California, however, if:

  • You have a serious violent felony on your record;
  • You are a registered sex offender; 
  • You have two (2) or more prior convictions for cultivating more than six marijuana plants; or
  • You violate certain California environmental laws in cultivating your marijuana.

If you are under 21, cultivation of any amount of marijuana is an infraction.

Who Can Apply for Re-sentencing for a Prior Conviction?

California Proposition 64 allows most people with a prior marijuana conviction to apply to have the charge reduced from a felony to a misdemeanor or from a misdemeanor to an infraction.

You are eligible for resentencing if your sentence would have been lighter under the Adult Use of Marijuana Act. A judge must grant your request unless a prosecutor opposes it and proves by "clear and convincing evidence" that reducing your sentence would result in an unreasonable risk of danger to public safety.

Depending on how much of your sentence you have already served, re-sentencing under Prop 64 could lead to your immediate release from jail.

But even if you are not currently in jail, re-sentencing under AUMA can help you restore rights lost as the collateral consequences of a felony conviction – such as the right to own a firearm without violating <a " href="" target="_blank" data-insertion-id="83748">California's "felon with a firearm" law.

Re-sentencing under AUMA can also mean that in most cases you won't have to disclose your marijuana-related offense on job and housing applications. In addition, once a felony has been reduced to a misdemeanor, you can apply for a California expungement. With an expungement, the criminal conviction will not show on your record for most purposes.

Who Can Legally Sell Marijuana in California Now?

Under AUMA, businesses will need to acquire a license from the state of California before they can legally sell recreational marijuana. They may also be required to obtain a license from local governments.

If you do not have all necessary licenses, the sale, transport or possession of weed with intent to sell it will still be a crime in California. However, for individuals, it will generally no longer be a felony. Instead, these acts will be misdemeanors with penalties that can include up to 6 months in county jail and/or a fine of:

Up to $500 for possession of pot for sale under Health & Safety Code 11359, or
Up to $1,000 for the sale or transport of weed under California HS 11360.

Sale, transport or possession of weed for sale is still a felony In California, however, if:

  • You have a prior conviction for a serious violent felony or sex offense;
  • You have two (2) or more prior convictions for these crimes;
  • You knowingly sold or attempted to sell marijuana to someone under 18; or
  • You imported into California or exported out of California, for the purpose of sale, more than 28.5 grams of marijuana or more than four grams of concentrated cannabis (or you attempted to do so).

As a felony, possession of marijuana for sale can be punished by 16 months or 2 or 3 years in jail. For felony sale or transport of weed charges, potential jail time increases to 2, 3 or 4 years.

Still Have Questions? Call Our California Marijuana Lawyers.

If you or someone you know was convicted on California marijuana charges and you are interested in applying to have your sentence reduced, our caring California marijuana defense lawyers are here to help. To reach an experienced marijuana attorney, call us at (855) 396-0370. We also have lawyers available to help you in Nevada and Colorado.

  1.  The other states legalizing such use in the 2016 general election were Nevada, Maine, and Massachusetts, joining Washington, Oregon, Alaska, and Colorado.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.


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