On November 8, 2016 California voters took the historic step of legalizing the recreational use of small amounts of marijuana, effective immediately. The steady decriminalization of marijuana in California has come a long way over the past several decades. It may seem hard to believe but even a respected musician like Neil Diamond was arrested for marijuana in 1976 after cops raided his Bel Air home looking for contraband. In 1996, medical marijuana was legalized in the state, which set off a trend that is continuing to sweep the nation, and former Governor Schwarzenegger made possession of marijuana a civil infraction like a parking ticket only a few years back. But here we are in 2016 and recreational marijuana is finally legal under state law, but there are a few important issues regarding the criminal law affecting marijuana that you will want to be aware of.
Marijuana Remains Illegal Under Federal Law
Despite the fact that California, Oregon, Washington, and Colorado have legalized the recreational use of marijuana (and dozen of other states have legalized medical use), possession of marijuana is still illegal under federal law.
So what does this mean?
Under the supremacy clause of the US Constitution, federal law supersedes state law, so it is the case that a person is breaking federal law by possessing marijuana in California. The catch, however, is that California state and local law enforcement do not enforce federal laws, so it is not their responsibility or domain to arrest you for violating federal marijuana laws, nor is it the job of state and local prosecutors to bring federal charges. Enforcing federal laws on marijuana is the job of federal agencies such as the DEA or FBI and it is up to the Department of Justice to bring charges. The Obama Administration chose not to target individuals in California who lawfully possessed marijuana under state law, although what the Trump Administration does with regard to marijuana remains to be seen.
You Can Be Arrested for Driving While Under the Influence of Marijuana
The new California law does not change the fact that California law makes driving while intoxicated by alcohol or any other drug, including marijuana, illegal. Indeed, due to concerns that marijuana use might proliferate, we should not be surprised to see law enforcement take a more aggressive stance when it comes to policing driving while under the influence of marijuana.
What makes marijuana different from alcohol, however, is that there is a clear measure of what will constitute an illegal act with alcohol – namely driving with a BAC of .08% or higher – and there is a straightforward (if not 100% accurate) method of testing BAC through blood tests and breathalyzers, and this is not the case with marijuana. At this point, law enforcement is still developing ways to test for intoxication by marijuana, but we can expect much more discussion on this topic in the coming years.
Marijuana Is Still Subject to Numerous Restrictions
Despite the fact that recreational marijuana possession is now legal in California, it is important to remember that, like alcohol, many restrictions still apply, and violation can result in arrest:
- You must be 21 or older to possess marijuana
- You can only possess up to one ounce
- If police believe you have intent to sell marijuana, you can be arrested
- You can only grow up to 6 plants, and localities may enforce restrictions on outdoor cultivation
- Possessing marijuana in your car is a misdemeanor offense
Fighting For Your Best Possible Outcome in Your Drug Case
If you have been placed under arrest or are under investigation for marijuana or other narcotics in California, it is important to work with criminal defense attorneys who will fight for your rights.
At the Law Offices of Omar Gastelum and Associates, PLC, our experienced criminal defense attorneys will work with you from the very start to reach a positive outcome: a dropped investigation, a dismissal of charges, a not guilty verdict, a reduced sentence, or an alternative treatment program. Call the Law Offices of Omar Gastelum and Associates, PLC today to get your best defense now.