Although medical and recreational use of marijuana or cannabis is legal here, it remains a controlled drug substance that could land you in jail. According to Health and Safety Code (HS) 11359, having marijuana in your possession with the intent or motive to sell or distribute it for money, goods, services, or other benefits is a crime.
A conviction for HS 11359 violation can attract severe and life-altering penalties, including deportation for aliens or non-citizens. If you have a criminal charge for possession of marijuana for sale, it is critical to have a skilled attorney as your voice during the prosecution process.
Attorneys at Chula Vista Criminal Attorney are here for you, or love is under investigation or arrest as a culprit in a case involving possession of marijuana for sale. In addition to being your legal counsel during these confusing moments, we will aggressively fight for your best interests in court for the best possible judgment on the alleged charge.
Understanding Possession of Marijuana for Sale Charges
Despite the enactment of Proposition (Prop) 64 on 8th November 2018, you could still run into trouble with the law for having cannabis, pot, weed, or marijuana in your possession with the intent to sell or distribute it. The reason being there are only two sources or outlets for lawful marijuana, that is:
- Medical marijuana dispensaries
- Businesses that are licensed to sell or distribute recreational cannabis or marijuana to consumers aged 21 years and above
If you do not fall in any of the above categories, selling or distributing marijuana or cannabis will be unlawful. Even after decriminalizing cannabis for recreational use, HS 11359 remains unchanged. Without a proper defense attorney on your side, you could lose the opportunity to prove your innocence in court and end up with a wrongful conviction for a crime you did not commit.
For that reason and many other reasons, it is wise to hire a skilled defense attorney without delay if you or your loved one is under investigation or charged with the crime of having marijuana for sale in your possession.
Elements the Prosecutor Must Prove for a Conviction for Possession of Marijuana for Sale Charges
The trial hearing is the most tricky proceeding in the criminal justice system because the court decision could mean spending time behind bars or going home. However, to convict you under HS 11359, the prosecutor presiding over your case must prove particular elements in front of a jury or a judge.
Typically, the prosecutor will carry the burden of gathering convincing evidence to satisfyingly prove the elements explained below beyond a reasonable doubt to secure a conviction against you for HS 11359 violation:
You Had Useable Quantity of Marijuana or Cannabis in Your Possession
For a conviction under HS 11359, the prosecutor must prove that you had a significant amount of cannabis in your possession, meaning it was for sale or distribution. Generally, adults aged 21 years or above can buy, possess and consume up to 28.5 grams (approximately an ounce) of marijuana in their private residence.
However, if the quantity of marijuana you had in your possession exceeds this legal limit, the court will consider the amount for sale.
For the sake of section 11359 of the Health and Safety Code, having the alleged amount of marijuana in your possession could be constructive or actual. Typically, you had actual possession of the alleged amount of marijuana if the prosecutor can prove that it was in your person or something you were holding, like a bag.
On the other hand, you had constructive possession of the alleged usable amount of marijuana if it was within your reach and you had control over it.
You Were Aware and Knowledgeable of the Marijuana Presence
Having the alleged usable amount of marijuana in your possession or within your reach does not mean you knew of its presence. For instance, your college roommate decides to hide some usable amount of marijuana in your shared kitchen cabinets. However, he/she refuses to tell you that he/she has some marijuana hidden there.
In that situation, you cannot be guilty of HS 11359 violation even though you have dominion or control over the kitchen because you were unaware of the marijuana presence. For a conviction under HS 11359, the prosecution team must prove beyond a reasonable doubt that you were well aware of the marijuana presence. According to this statute, “marijuana” could be:
- The resin extracted from any section of the plant
- Any part of the plant
You Were Well Aware Marijuana is a Controlled Substance
You would not be guilty of HS 11359 violation if you did not know marijuana was a controlled substance. For instance, your college roommate comes home with a container full of green organic substance and tells you it is a “spiritual herb” that he will use to cleanse the apartment spiritually. However, the container is full of marijuana which he intends to sell for money.
In this situation, you cannot be guilty of HS 11359 violation because you did not know the “spiritual herb” was marijuana. The prosecutor will rely on the arresting officer’s report or testimony to prove that you were aware marijuana was a controlled substance.
The arresting officers could testify that you were nervous or trying to hide the substance as they approached your vehicle, meaning that you were aware marijuana is a controlled substance. When you have a reliable attorney in your corner, he/she can raise a doubt about the credibility of the officer’s testimony for the best possible results on the alleged charge.
You Had the Criminal Intent to Distribute or Sell the Marijuana
The prosecutor could argue that you had the criminal intent or motive to sell the usable quantity of cannabis you had in your possession if it was above the legal limit. Direct and circumstantial evidence of the alleged case could help your attorney prove this element during the trial hearing. Direct evidence of your intent to sell cannabis could include:
- A police officer seeing you give another person marijuana for money or other valuable goods
- Your recorded statements, like “I’ve got some ounces of marijuana to sell”
However, the circumstantial evidence that could help the prosecutor secure a conviction against you for HS 11359 violation includes the presence of the following in your person, house, or vehicle:
- Small baggies
- Small containers
- A large amount of cash
- An amount of marijuana that exceeds the legal limit
Unless the prosecutor has sufficient evidence to prove these elements beyond a reasonable doubt at trial, you would not be guilty of HS 11359 violation. A reliable and experienced defense attorney will know the viable defense arguments to counter the prosecutor’s arguments for the best favorable results.
Potential Penalties for HS 11359 Violation
The penalties you will face upon a conviction for HS 11359 violation depend on whether your case is a misdemeanor or a felony. In most cases, the prosecutor will file your case as a misdemeanor offense as long as you are an adult. A misdemeanor conviction for HS 11359 violation will carry the following penalties:
- A county jail term of not less than six months
- A fine amounting to $500
However, the prosecutor could file your case as a felony under the following circumstances:
- You have a conviction record for a violent felony, like gross vehicle manslaughter or murder
- You have two or more misdemeanor convictions on your record for HS 11359 violation
- You did sell or attempt to sell marijuana to an under 18
A conviction for HS 11359 violation as a felony will attract the following penalties:
- A maximum of $10,000 fine
- A jail term of up to three years
Fortunately, even if your case is a felony, you can qualify for probation instead of serving your sentence behind bars. When you are eligible for probation, the court will require you to abide by the following requirements or conditions:
- Pay restitution to any victim of the offense
- Participate in a community service
- Enroll in drug treatment and rehabilitation program
- Consent to a warrantless random search of your person and residence during the probation period
- Submit to random drug testing
When you violate any of these conditions, the court will give an arrest warrant, allowing the officers to arrest you. Upon the rearrest, you will serve the maximum jail time required for a conviction under this statute unless your defense attorney can prove you had an exceptional reason to do so.
Retaining the services of a reputable defense attorney is the best way to minimize the chances of a guilty verdict against you for HS 11359 violation. Your attorney could apply various legal defense arguments to counter the alleged charge for an appealing outcome.
Other Potential Consequences of a Conviction for HS 11359 Violation
Unfortunately, a conviction for HS 11359 violation will come with other detrimental consequences which will follow you even after serving your sentence and paying your dues. Some of these consequences include:
Securing a Reliable Employment Will Become a Challenge
A conviction for possession of cannabis for sale as a felony can reduce your chances of securing a reliable job since most employers will want to know your criminal background before hiring you.
Professional License Revocation/Suspension
Upon a conviction for violating HS 11359, you could experience trouble obtaining professional licenses to chase your dreams, especially when you are a lawyer, pharmacist, nurse, or medical practitioner. Also, revocation or suspension of your professional license can happen upon a felony conviction for this charge if you already have it.
Enrolling in a College for Higher Education Will Become a Challenge
If you have a felony conviction for this charge on your record, pursuing higher education could be challenging because:
- Universities and colleges could be reluctant to accept your admission request
- You could be ineligible for federal financial aid like student loans or grants
The consequences of a guilty verdict against you for HS 11359 violation could be worse for aliens or non-citizens. Deportation can also happen upon a conviction for possession of marijuana for sale charge under HS 11359 as an alien.
The consequences of a guilty verdict against you for HS 11359 violation could negatively affect the quality of your life. However, with the help of a skilled and compassionate defense attorney, you could fight this offense and avoid the stigma of the possible conviction altogether.
Applicable Legal Defenses for Possession of Marijuana for Sale Charges Under HS 11359
Generally, the legalization of marijuana for recreational and medical use allows for unquestionable and solid legal defenses to counter a possession of cannabis for sale charge under HS 11359 violation. Although every crime is different, the legal defenses explained below could work out to your advantage to counter the alleged charge:
The Cannabis You Had in Your Possession Was for Recreational Use
Since Prop 64 was effective, Californians aged 21 years and above can now legally use and buy marijuana or cannabis for recreational use under certain conditions. Therefore, even if you had usable marijuana in your possession, your attorney can argue that the amount was not above the legal limit of 28.5 grams for the best possible results on the alleged charge.
The Marijuana Was for Medical Use
According to Compassionate Use Act (CUA), you can have medical cannabis in your person or possession as long as:
- You have a valid prescription from a licensed doctor to use medicinal marijuana for your health condition
- You are a caregiver for a patient who requires medicinal marijuana
If your defense attorney can prove these facts, the court could reduce or drop the alleged drug charge.
You Had No Intent or Motive to Distribute or Sell the Marijuana
If you had a usable amount of recreational cannabis, your defense attorney could argue that you did not have the motive to sell it for the best possible outcome.
You Were Unaware the Substance Was Marijuana
As mentioned above, you cannot be guilty of HS 11359 violation if you were unaware the alleged substance was marijuana. The court could dismiss or reduce the alleged charge if your defense attorney can raise convincing arguments to prove that you were unaware the substance was marijuana.
You are a Victim of Entrapment
Entrapment is a viable and effective legal defense if the encouragement to commit the offense was from a government official or police. A police officer could encourage or lure you into committing an offense unknowingly due to your skin color or race. A skilled defense attorney can argue this defense during your case’s trial hearing for the best attainable judgment.
The Police Officers Did Not Follow the Lawful Procedures During the Arrest
The court could consider your arrest unlawful if the arresting officers did not follow the required procedures during your arrest. For instance, before an arrest, an officer must inform you of your Miranda rights to avoid incriminating yourself unknowingly. If the arresting officer did not do that, your attorney could argue that your arrest was illegal for the best favorable outcome.
Generally, the above are just a few legal defenses that your defense attorney can apply to counter the alleged possession of marijuana for sale charge. Other possible defenses that could work out in your favor for an appealing outcome include:
- You are a victim of unlawful search
- The cannabis was not in your possession
- You had plans of sharing the cannabis with your friends
The specific legal defense that your attorney will use to counter the prosecutor’s evidence against you will depend on your unique case’s circumstances. The sooner you contact an attorney, the better to give him/her ample time to prepare bulletproof defenses that could work out to your advantage for a lighter charge or dismissal of the entire case.
Offenses Related to the Crime of Possession of Marijuana for Sale
When the prosecutor’s evidence against you is insufficient to convict you for the possession of marijuana for sale charge, he/she could decide to charge you with other related offenses, including:
Simple Possession Under HS 11357
According to section 11357 of the Health and Safety Code, any person with not less than twenty-one (21) years can possess and buy not more than 25.8 grams of marijuana. Therefore, having more than 25.8 grams of marijuana in your possession is illegal. A conviction for this charge will attract misdemeanor penalties, including:
- A maximum of six months in jail
- A maximum of $500 fine
Cultivation of Marijuana Under HS 11358
According to the new marijuana cultivation laws, as amended by Prop 64, adults aged 21 years or above can plant or cultivate not more than six (6) marijuana plants as long as they do so in their private residence away from public view.
In most cases, the prosecutor will file your case as a misdemeanor when you cultivate more than six marijuana plants in your residence or any other place prohibited by the local law. Upon conviction for HS 11358 violation, you should expect a jail term of up to six (6) months and a fine not exceeding $500.
Driving With an Open Jar or Container of Cannabis Under Vehicle Code (VC) 23222 (b)
In addition to the possession of marijuana for sale charge, the prosecutor could also file a charge against you for VC 23222 (b) violation. Vehicle Code (VC) 23222 (b) is the statute that makes it a crime to operate or drive a car with an open jar or container of cannabis in your possession. A conviction for VC 23222 (b) violation is an infraction punishable by a fine of up to $100.
Marijuana Sale Under HS 11360
According to Prop 64, only people with a valid license can lawfully sell marijuana. Therefore, it will be illegal for you to sell or transport marijuana with the intent of selling it. A conviction for HS 11360 violation is a misdemeanor, carrying a jail term of up to six (6) months and a fine of not more than $1,000.
Having an aggressive defense attorney in your corner is the key when you run into trouble with the law for alleged possession of marijuana for sale. An experienced attorney will prepare defenses to fight the alleged criminal charge for the best possible outcome.
Expunging a Conviction for HS 11359 Violation
After serving your sentence and paying dues for a conviction under HS 11359, you deserve a fresh start to move on with your life and chase your dreams. Fortunately, you can obtain this fresh start by filing an expungement petition with the court presiding over your case. An expungement will release you from all the consequences and effects of having a conviction on your record.
That means a potential employer cannot know you have a criminal record after expungement, increasing your chances of securing employment. Typically, you can qualify for expungement under Penal Code 1203.4 as long as:
- You are not currently on probation for any criminal offense
- You do not have any ongoing criminal charge
- You are not currently serving a sentence for any criminal offense
Whether or not you need to avail yourself at the expungement hearing will depend on your unique case’s facts. If your presence is necessary, your defense attorney will keep you informed to prepare for the hearing ahead of time.
Find a Chula Vista Criminal Defense Attorney Near Me
Undoubtedly, dealing with the police officers during an investigation or arrest for any crime can be stressful. In a criminal justice system that is not on your side, having a defense attorney in your corner is vital for legal counsel and representation in court. Attorneys at Chula Vista Criminal Attorney understand how tricky and confusing possession of marijuana for sale charges can be.
Once you contact us, we will thoroughly investigate your case to prepare unshakable defenses that could work out to your advantage for a lighter charge or dismissal of the case. Call us at 619-877-6894 to schedule your initial cost-free appointment with our caring and credible defense attorneys.