Humboldt County's Strongest Marijuana Defense Firm

Cannabis related crimes are constantly evolving as cities, counties, states and the country as a whole grapple with unraveling of a drug that was vilified through a government organized campaign of misinformation. In trying to give a basic overview of what has become a more complicated area of law, I am mindful that the use of the word “marijuana” itself was part of that campaign of demonization and misinformation.

Cultivation of Marijuana (Health & Safety Code 11358)

Felony Cultivation

Felony cultivation of marijuana carries up to three years incarceration and a fine of up to $10,000, or both. Cultivation is a felony if any one of the following exist in conjunction with the cultivation of more than six plants:

• Water Code 1052 violation relating to illegal diversion of water.
• Water Code 13260, 13264, 13272, or 13387 violation relating to discharge of water.
• Fish and Game Code 5650 or 5652 violation relating to waters of the state.
• Fish and Game Code 1602 violation relating to rivers, streams, and lakes.
• Penal Code 374.8 violation relating to hazardous substances or Health & Safety Code 25189.5, 25189.6, or 25189.7 violation relating to hazardous waste.
• Fish and Game Code 2080 violation relating to endangered and threatened species or Fish and Game Code 3513 violation relating to the Migratory Bird Treaty Act, or Fish and Game Code 2000 violation relating to the unlawful taking of fish and wildlife.
• Intentionally or with gross negligence causing substantial environmental harm to public lands or other public resources.
• The person has suffered two prior misdemeanor convictions for marijuana cultivation.
• The person is Required to register as a sex offender under PC 290 as a result of a conviction for specified offenses under Penal Code 667(e)(2)(c) or Penal Code 290(c)

The most commonly charged felonies from the cultivation of marijuana result from not having an approved Fish & Game Code 1600 permit to divert water for the cultivation of marijuana. Many people have the misunderstanding that they are not illegally diverting water that because they are using water from a source like an on onsite well, a preexisting surface water source (i.e. pond), or from a deeded water right to the property. However, taking water from any source on a rural property without the 1600 permit to cultivate marijuana can and will be deemed as an illegal diversion leading to felony charges.

The second most common environmental transgression is having waste near, or that could flow, into a waterway that supports aquatic life. Fish & Game Codes 5650 and 5652 are written so broadly that it makes all too simple for law enforcement to use this section to elevate the charges to a felony level.

Farm Hands/Waterers/Trimmers Etc

If you are assisting in any way with the illegal cultivation of marijuana, you can and are often charged with the same high level of criminal offenses as the person responsible for and profiting from that cultivation.

Civil Penalties Related to Cultivation

Many government agencies have the power to impose civil administrative penalties that are often extremely costly to the cultivator and the property owner. The property owner is deemed responsible for conduct of renters even if they are actually unaware of the conduct that leads to administrative action. It is imperative to consult with an attorney immediately if you believe there is a possibility of an administrative action and certainly if you have received notice of any such administrative action. Many notices require responses and sometimes full remediation within 7-10 days or you could be found to have forfeited your due process right to contest the assessment of substantial and often excessive monetary penalties.

Below are just a few of the agencies that commonly impose administrative penalties for violating various county and state ordinances and regulatory laws.

• Department of Fish and Wildlife
• County Abatement
• CalFire
• Water Board
• CDFA/CalCannabis

Misdemeanor Cultivation

An adult growing more than 6 plants without an environmental offense or other aggravating factor (as listed above) is a misdemeanor. Punishment for conviction carries up to 6 months in county jail, fines, and probation. This offense is priorable such that future prosecutions for the same misdemeanor conduct can be elevated to a felony.

Transportation of Marijuana (Health & Safety Code 11360)

An adult over the age of 21 can legally possess and transport one ounce or less of marijuana or 8g or less of concentrated marijuana within the State of California. Like alcohol, it should be in a closed and sealed container or in a place that is not accessible to the driver (like a trunk)

Felony Transportation

Felony transportation of marijuana carries up to three years incarceration and a fine of up to $10,000, or both. The transportation of marijuana is a felony if evidence of any of the following exist:

• The offense involved the import, offer to import, or attempted import into this state, or the transport for sale, offer to transport for sale, or attempted transport for sale out of this state, of more than 28.5 grams of cannabis or more than four grams of concentrated cannabis.
• The person has two or more prior misdemeanor convictions for misdemeanor transportation
• The offense involved the knowing sale, attempted sale, or the knowing offer to sell, furnish, administer, or give away cannabis to a person under the age of 18 years;
• The person is Required to register as a sex offender under PC 290 as a result of a conviction for specified offenses under Penal Code 667(e)(2)(c) or Penal Code 290(c)

The most common situation is where law enforcement has some evidence that marijuana is intended to be taken out of state. This might be based on evidence such as text messages, rental car paperwork, and/or statements by those arrested.

Misdemeanor Transportation

An adult transporting more than the allowed amounts is facing a misdemeanor offense that carries up to 6 months in county jail, fines, and probation. This offense is a priorable offense such that future prosecutions for the same misdemeanor conduct can be elevated to a felony.

Possession for Sale of Marijuana (Health & Safety Code 11359)

Felony Possession for Sale

Felony possession of marijuana for sale carries up to three years' incarceration and a fine of up to $10,000, or both. Possession for sale is a felony if any one of the following exist:

• There are prior convictions for marijuana sales
• Knowingly selling/attempting to sale to a person under the age of 18,
• Being 21 years of age who knowingly hires, employs, or uses a person 20 years of age or younger in unlawfully cultivating, transporting, carrying, selling, offering to sell, giving away, preparing for sale, or peddling any cannabis.
• The person is required to register as a sex offender under PC 290 as a result of a conviction for specified offenses under Penal Code 667(e)(2)(c) or Penal Code 290(c)

Misdemeanor Possession for Sale

Possession for sale as a misdemeanor offense carries up to 6 months in county jail, a fine, and probation. This offense is a priorable offense such that future prosecutions for the same misdemeanor conduct can be elevated to a felony.

Manufacturing of Marijuana Concentrates (Health & Safety Code 11379.6)

The chemical extraction of THC by means of a combustible solvent is a serious felony offense and is categorized no differently that the manufacture of methamphetamine or other controlled substances. Doing so in a residential neighborhood is an aggravating factor and is arguably a probation ineligible offense. Health and Safety Code 11379.6/ Health and Safety Code 11362.3(a)(6). The most common is through the use of butane (butane honey oil) but any combustible solvent will suffice for this crime.

Firearm Possession in the Commission of a Felony (Penal Code 12022)

There are varying degrees from the simplest that any person involved possessed or had access to a firearm in the commission of the crime to the more serious of being a person that actually possessed a firearm in the commission of cultivating, transporting or selling marijuana. These sentencing enhancements can add one to five years on top the punishment for any other charges.

Marijuana Conspiracy Charges (Penal Code Section 182)

Where two or more people make an agreement to commit a crime and take any step in the furtherance of that crime, conspiracy has been completed. The agreement does not have to be in writing and can be inferred based on the evidence in the case. The crime of conspiracy does not even have to be attempted or completed since the agreement to do something illegal, and taking one additional step in the furtherance of that agreement, is the crime itself. And, as odd as it may seem, even if the crime that is subject of the conspiracy is a misdemeanor only, the agreement or conspiracy to commit that crime can be charged as a felony.

Forfeiture of Cash or Personal Property (Health & Safety Code 11488)

If cash or assets of value are taken in the course of law enforcement action, a receipt should be provided for what was seized. The state will often seek forfeiture of those assets claiming they were intended for use to facilitate drug related offenses or are the proceeds from illegal drug related activities. The time to respond and contest such forfeiture varies depending on factors such as the value of the assets and how notice of seizure was made. Failure to respond could lead to the loss of the ability to contest forfeiture so it is imperative that you seek the advice of counsel immediately.

Other Offenses Associated with Marijuana Cases

Worker Comp Insurance Fraud – legally permitted/licensed or not, the District Attorney has begun to look at whether worker compensation insurance is being paid for farm workers. Failure to have workers compensation insurance can lead to criminal charges and excessive civil fines. It is part of the reason why there are companies set up that provide farm workers (waterers, trimmers, etc) that handle this aspect for the grower.

Fish and Games Code Violations – these are often the same offenses that have already elevated misdemeanor cultivation offenses to felonies having to do with the lack of water diversion permits or waste in or near waterways.

Medical Marijuana Defense

You can still raise a defense of medicinal marijuana when it comes to personal possession, cultivation and transportation of marijuana in an amount greater than allowed by law. However, the concept of collectives and cooperatives have been melded into the permitting and licensing and will no longer provide defense. Learn more about the legal history of marijuana in California.

Never Consent to the Search of Your Person, Vehicle, or Residence

Always politely but clearly let law enforcement know that you do not consent to the search of your person, vehicle or home. Law enforcement continues to believe that the smell of marijuana (burnt/fresh/green) allows them probable cause to conduct searches. Case law in California has consistently been moving away from such a proposition. Chances are that law enforcement will search you and/or your vehicle whether you protest or not but you need to object to such searches to help protect the ability to contest it in court. In the case for the search of your residence or home, generally law enforcement needs a warrant signed by a judge.

If you or a loved one has been arrested for a crime of related to the illegal marijuana conduct, it is important to seek counsel as soon as possible to help navigate the issues that arise from the arrest and the criminal court case that follows. Call us to schedule a confidential consultation so we can discuss your particular situation and how best to proceed.