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Is it illegal to grow peyote in California?

Posted by Neil Shouse | Feb 21, 2019 | 0 Comments

peyote flower
Lophophora fricii or Peyote flower

California Health and Safety Code 11363 HSC is the California statute that makes it a crime for a person to grow, or cultivate, peyote.

This statute also makes it a crime for a person to:

  • plant,
  • harvest,
  • dry, or
  • process

peyote.

A violation of HSC 11363 is a type of wobbler offense in California. This means it can be charged as either a misdemeanor or a felony.

If charged as a misdemeanor, the crime is punishable by:

  • imprisonment in the county jail for up to one year; and/or,
  • a maximum fine of $1,000.

If charged as a felony, the offense is punishable by:

  • imprisonment in the California state prison for up to three years; and/or,
  • a maximum fine of $10,000.

Legal defenses are available to those accused under PC 11363. One such defense is “mistake of fact.”

What is prohibited under California Health and Safety Code 11363 HSC?

HSC 11363 makes it a crime for a person to:

  • plant,
  • cultivate,
  • harvest,
  • dry, or
  • process

any plant of the genus Lophorphora, or peyote.

Please note that simply possessing this drug is punishable under California's possession of a controlled substance law. Cultivating it under HSC 11363 is a more serious crime that simple possession.

What are the penalties for violating Health and Safety Code 11363?

A violation of HSC 11363 is a wobbler offense, meaning that it can be charged as either a misdemeanor or a felony based upon:

  • the facts of the case; and,
  • the criminal history of the defendant.

If charged as a misdemeanor, the crime is punishable by:

  • imprisonment in the county jail for up to one year; and/or,
  • a maximum fine of $1,000.

If charged as a felony, the offense is punishable by:

  • imprisonment in the California state prison for up to three years; and/or,
  • a maximum fine of $10,000.

Are there legal defenses if a person is accused of a crime under HSC 11363?

Legal defenses are available to a person charged with the cultivation of peyote. A good defense can often get a charge reduced or even dismissed.

One common defense for an HSC 11363 accusation is known as “mistake of fact.” Under this defense, a defendant asserts that while he may have been cultivating peyote, he did not know that the plant he was growing was actually peyote.

Is cultivating peyote protected by the right to freedom of religion?

Laws against cultivating peyote are problematic because of the right to freedom of religion set forth in both the U.S. and the California constitutions.

This is because people who adhere to the Native American Church (also known as peyotism) consume peyote as part of their religious rituals.

The California Supreme Court has held that a person may not be convicted of simple possession of peyote for possessing and using peyote as part of a legitimate religious ritual.

However, courts have not considered whether or not the same reasoning applies to the cultivation of peyote. In other words, if you plant or harvest peyote for religious purposes, you may still be found guilty of cultivating peyote under Health & Safety Code 11363.

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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