Possession Of Marijuana For Sale

California legalized marijuana for recreational use by adults over the age of 21, but with one important caveat: it is still illegal to possess marijuana for sale. Small amounts for personal use are acceptable, but selling them can carry serious consequences, like jail time, fines, and a lifelong criminal record. These penalties could significantly impact your ability to find work, find housing, and get professional certification.

If you are accused of possessing marijuana for sale, contact the Pasadena Criminal Attorney. Our knowledgeable attorneys will help you navigate the complexity of the marijuana laws. We’ll help develop a defense strategy that could have your charges dropped or reduced.

Possession Of Marijuana For Sale Under California Law

The recreational marijuana industry in California operates under a predetermined framework. It is illegal to possess marijuana with the intention of selling it, according to Health and Safety Code Section 11359. This law covers everyone in possession of marijuana, not simply those engaged in transportation or growing. Intent is the primary factor that separates possession for personal use from possession for sale. The prosecution has to establish beyond a reasonable doubt that you had the marijuana with the express purpose of selling it.

The prosecution needs to prove several elements to secure a conviction in a case involving marijuana possession for sale. These elements include:

• Possession and knowledge — The prosecution needs to demonstrate that you were in charge of the marijuana and were aware of its nature and existence. Prosecutors could show how the marijuana was found in your car, on your person, or in a convenient place.
• The actual substance found is marijuana — Law enforcement needs to verify through laboratory testing that the material is, in fact, marijuana.
• Usable quantity — The quantity of marijuana detected must be more than the permitted amount for personal use, suggesting a desire to sell.
• Intent to sell — The main argument in this case is the intent to sell. While mere possession is not enough, prosecutors often rely on circumstantial evidence to establish intent. This evidence could include:
  1. Quantity — Higher quantities are a strong indication of an intent to sell.
  2. Packaging — Materials like scales and baggies used for distribution can be incriminating
  3. Sales activity — Proof of previous sales, marketing campaigns, or messaging about the sale of marijuana could bolster the prosecution's case.

1. Marijuana

"Marijuana" refers to all parts of the Cannabis sativa L. plant, regardless of whether it is grown or not. It includes leaves, flowers, stems, and seeds. Moreover, resin taken from any portion of the plant and any artificial product, compound, salt, derivative, mixture, or preparation made from the cannabis plant, its seeds, or its resin is also part of the plant.

The term does not, however, include industrial hemp. This is a strain of cannabis that has a low concentration of the psychotropic ingredient THC. The primary purpose of industrial hemp cultivation is for its fiber, which has minimal psychotropic potential.

Food, beverages, topical or oral cannabis products, and other items not listed above do not count toward the legal definition of marijuana.

The quantity of usable cannabis, which is usually described as the dried weight of marijuana flower material or the concentrated THC content in extracts, is the law’s focus.

2. Possession and Knowledge

Legally speaking, having marijuana in your possession means you own or have control of the controlled substance. This control could show up in one of two ways:

• Physical possession — The most straightforward situation is when you have marijuana physically on you, as in pockets, purses, or backpacks.
• Constructive possession — When marijuana is in a place that is easily accessible and under your control but is not physically on you, it is considered constructive possession. Examples include discovering marijuana in your house, vehicle, or an apparent secret compartment. Here, access to the material and awareness of its existence are critical components.

The legal definition adds another level. It also requires proof of knowledge of the substance's existence and nature to be considered possession. Just having an unknown material is not enough to convict. The prosecution has to prove that you were in possession of marijuana with particular knowledge of two critical points.

• You had to be aware of the substance's nature — This gets rid of scenarios where someone accidentally picks up an unknown object and ends up in possession of marijuana. The onus is on the prosecution to demonstrate that you were in possession of marijuana and not just holding an unknown object.
• You knew where the marijuana was — This is more than just proximity to the marijuana. Even if marijuana is not physically on your person, you must be aware that it is present in a specific area for constructive possession to apply. For example, finding marijuana in a secret compartment in your vehicle indicates that you were aware of its existence in that specific location. Legally speaking, being in the same room as marijuana would not always meet the knowledge threshold.

Therefore, simply being in the presence of someone else possessing marijuana would not automatically translate to you knowing of its presence or that he/she had the marijuana.

In proving your knowledge of the marijuana, prosecutors will rely on circumstantial evidence:

• Location of the marijuana — It is possible to infer knowledge if you find marijuana in an area that is within your control, like your home, automobile, or a secret compartment that you are aware of.
• Drug paraphernalia is present — The prosecutor can prove that you knew the nature of the drug and intend to use it if police officers find pipes, rolling papers, scales, or other objects frequently used with marijuana.
• Past knowledge or admissions — It can help the prosecution's case if you have a history of marijuana use or if you have admitted knowing about the marijuana in question.

3. Intent to Sell

The prosecution must prove beyond a reasonable doubt that you possessed the marijuana with the express intent to sell it for the courts to find you guilty of possession of marijuana for sale. It is not enough to merely possess marijuana, even if you go beyond the legal limit for personal use.

Usually, prosecutors rely on circumstantial evidence. The amount of marijuana is a significant consideration. Large amounts, much more than the allowable limit for personal use, indicate a strong desire to sell. Scales and baggies, two popular distribution packaging items, can be used as incriminating evidence.

The prosecution can go into your background to find evidence of previous sales activities, marijuana-related marketing, or messages that could implicate you. Even the presence of drug paraphernalia, while not conclusive, can be used against you if the quantity or variety suggests large-scale distribution.

In this case, selling is more than just a straight financial exchange. It can also include circumstances in which you coordinated or organized a marijuana sale between two or more people and made money from the deal without managing the marijuana yourself. Legally speaking, bartering marijuana for products or services is likewise deemed selling.

The intention to trade marijuana for something valuable is what matters. Even if shared for free, even having marijuana would not qualify as selling.

4. The Substance Found Should be Marijuana

When establishing that a drug is marijuana and introducing it as admissible evidence in court, police officers use two different strategies.

• They rely on their experience — Officers are taught to recognize marijuana by its scent and appearance. Even if the court values this preliminary evaluation, it is not perfect. Defense attorneys can challenge the identification due to the subjective nature of human senses.
• Officers then look to scientific confirmation to support their claims — Field test kits provide a rapid way to identify drugs in the preliminary stages. However, these tests have limitations in that they might not be marijuana-specific, which could result in false positives.

Law enforcement relies on forensic laboratory analysis for definitive results. Advanced methods like gas chromatography-mass spectrometry (GC-MS) are used. The indisputable identification of THC, the psychoactive component in marijuana, allows for its separation from other chemicals by GC-MS analysis. This scientific validation supports the prosecution's position.

Maintaining a meticulous chain of custody is essential at every stage of the process. This paperwork tracks the substance's precise ownership from the seizure to the lab analysis and back. Any discrepancies in this chain could weaken the prosecution's case, as they open the door for potential tampering. Experienced defense attorneys could exploit these weaknesses to challenge the evidence's validity.

5. The Quantity of Marijuana

The amount of marijuana becomes a crucial piece of evidence in cases involving possession for sale. Significant amounts beyond the legal limit for personal use can cause suspicion, although they do not always result in a conviction. You could have more significant amounts for justifiable reasons like verified medical needs or a high tolerance requiring a higher weekly intake rate. Proper storage techniques can also help you accumulate a substantial amount over time, strictly for personal use. Thus, quantity alone would not be sufficient to prove intent to sell.

Even expert opinions are susceptible to dispute in court when it comes to the legal interpretation of marijuana possession quantities. Thus, the emphasis switches from focusing solely on the quantity of marijuana involved to considering the entirety of the evidence. If you use medical marijuana, you have to prove without a shadow of a doubt that your possession is necessary for your stated medical conditions.

To establish a strong case for "possession with intent to sell," prosecutors look for several incriminating pieces of evidence. Large amounts of cash or weapons discovered with marijuana during a search could cause suspicion. Even though each of these things is lawful on its own, having them together raises questions about why you are in possession of marijuana.

Context is important. Chequing large sums of money could be regarded as drug proceeds or money set aside for future purchases. In a similar vein, the possession of a gun could indicate protection during illicit activity. This emphasizes how crucial it is to have thorough and convincing evidence for a successful conviction, particularly in cases where the amount of marijuana involved exceeds permissible personal use amounts.

Defenses You Can Use to Challenge Possession of Marijuana for Sale Charges

You can fight possession of marijuana for sale charges through several defense strategies. The ideal strategy depends on the facts of your case. Some of the defenses your attorney could use include the following:

1. Lack of Knowledge

You can cite the lack of knowledge of marijuana as a defense strategy. However, the effectiveness of this strategy depends on the particulars of how the marijuana was discovered. The key factors lie in establishing your genuine lack of awareness.

A location where you would not immediately be aware of the marijuana's existence would be ideal. This could be someone else's belongings, like a friend's backpack, or a shared living place, like an apartment or living room. You could claim that you were incapable of knowing the contents if the marijuana was found in a sealed container. However, the kind of container and the circumstances will determine whether this argument is successful. A clear container or one that smells strongly of marijuana, for instance, would compromise this defense.

Remember that if you assert a lack of knowledge, you bear the burden of proof. It is your responsibility to prove to the judge that you were genuinely unaware of the marijuana. This could be difficult, mainly if the amount is substantial. In response, prosecutors could claim that a reasonable person should have known, which could undermine your case.

Additionally, your general credibility is crucial. A history of drug charges or inconsistent statements about the marijuana found could seriously undermine this argument. A lawyer will carefully consider these limits and determine whether or not a lack of understanding is the best course of action in your particular case.

2. The Marijuana Was for Personal Use

Exceeding legal possession limits for marijuana can mistakenly lead to a charge of possession with intent to sell. This distinction is crucial, given the significant differences in penalties for each offense.

Quantity by itself is not a reliable indicator. Exceeding legal limits can raise red flags, although having more can be justified by proven medical reasons or a strong tolerance. Courts take into account all available evidence, but storing marijuana for personal use properly strengthens your defense. Particularly harmful are past sales recorded on receipts or messaging suggesting more future sales.

Having an attorney proves to be essential. If this defense suits your circumstances, he/she can obtain receipts from dispensaries, medical records, or proof of high tolerance. More significantly, he/she can evaluate the prosecution's case, create a defense plan that considers all available evidence, and successfully provide advice on dealing with the legal complexities.

3. You Were a Victim of an Illegal Search and Seizure

All citizens are protected from arbitrary searches and seizures under the Fourth Amendment, irrespective of the alleged crime. This includes the possession of marijuana intended for commercial purposes. This safeguard is a strong deterrent if law enforcement obtains evidence against you via an unauthorized search or seizure.

Your attorney will file a motion to suppress evidence to contest evidence obtained improperly. Your attorney will file this motion on the grounds that the evidence infringes upon your Fourth Amendment rights and should be excluded from the trial. This move can seriously weaken the prosecution's case because the jury will not review the excluded material.

Law enforcement officials do, however, have the right to carry out searches and seizures in some situations. They are permitted to act in this manner if they have probable cause, a legal requirement that goes beyond mere suspicion but stops short of perfect certainty.

A probable cause is the belief that a crime is being committed or that there is evidence of a crime.

There are more exceptions to the warrant requirement, including:

• Searches conducted in the course of an arrest
• Searches of cars under particular circumstances, and
• Searches conducted in plain sight

4. You are a Primary Caregiver

For primary caregivers accused of possessing marijuana with the intent to sell it, California's medical marijuana program offers a possible defense. However, using this argument effectively requires close compliance with state laws.

Under California's Medical Marijuana Program (MMP) and Compassionate Use Act (CUA), qualifying patients with certain medical conditions could use marijuana for treatment under specific legal guidelines, with caregivers designated to support them. This program could be a good defense if you are a registered caregiver.

The effectiveness of this defense is contingent upon your adherence to California's regulations regarding caregivers, which include:

• Registration — The state's medical marijuana program requires both the patient and the caregiver to register. Your defense becomes much weaker if you do not register.
• Documentation — Keeping up-to-date records strengthens your case. This includes pertinent medical records and the patient's doctor's recommendation.
• Quantity restrictions — A caregiver could carry up to eight ounces of processed marijuana for each registered patient.

5. Misidentification of the Substance

Police training in marijuana identification is not infallible. Legal drugs can have effects similar to those of marijuana, and errors can occur while under stress or in low light.

It is crucial in court to get a confirmatory lab test, even when an officer provides identification. If no lab test is available, the prosecution's case depends on the officer's visual identification. However, an experienced lawyer can call into question the accuracy of a scientific test.

One approach is the chain of custody or the recorded path of evidence handling. Here, contradictions cast doubt on the reliability of the evidence. Documentation gaps about the substance's testing, transportation, and collection processes could indicate contamination or tampering.

An alternative strategy centers on the laboratory technician's testing protocols or credentials. You can claim the results are untrustworthy and cannot conclusively identify marijuana if the precise testing procedures or the tester's qualifications are not evident.

Your lawyer could build a strong defense by raising questions about the validity of the lab test results or the original identification. He/she can investigate several hypotheses regarding the substance's existence. This could entail looking into identity theft cases or determining if the substance is a legitimate lookalike.

Penalties if Found Guilty of Possession of Marijuana for Sale Charges

Proposition 64 in California established a graduated system of fines for unauthorized possession of marijuana for sale under Health and Safety Code 11359.

For a typical misdemeanor, you could spend up to six months in county jail and pay a $500 fine. You are also eligible for probation instead of jail time.

If you sell to children or are a repeat offender, you could be subject to felony enhancements. The violation becomes a felony if there are past convictions for certain serious offenses, two or more prior marijuana possession busts, or possession of marijuana with the intent to sell to a minor.

Sentences for felonies range from 16 months to 3 years in county prison. The court will decide on the exact sentence within this range, considering your criminal history and the seriousness of the case.

You Do Not Qualify for Drug Diversion if You are Convicted of Possession of Marijuana for Sale Charges

Charges of possessing marijuana with the intent to sell usually exclude you from participating in drug diversion programs, which provide treatment instead of jail time. The program's primary goal is to find the source of this exclusion. Drug diversion aims to address the underlying reasons for substance misuse and helps those who are battling with their drug addiction.

Possession with the intention of selling points to a different situation. The likelihood of distribution and the financial gain connected to drug sales point to a more serious crime, one that is difficult to resolve with a program that focuses on individual addiction treatment.

You should not anticipate that drug diversion will be an option for possession with intent to sell, even though exceptions could apply based on the jurisdiction and particular circumstances.

Find a Criminal Defense Attorney Near Me

Having marijuana in your possession with the intention of selling it is illegal and can hurt your professional license, housing, and job. The marijuana legal landscape is changing quickly. Your best advantage could come from an experienced lawyer who will use their understanding of these evolving laws to argue for the most favorable result for your case.

For a free consultation, speak with the Pasadena Criminal Attorney at 626-689-2277. We have vast experience in handling marijuana cases.