Marijuana Criminal Defense Lawyer Joseph Tully, a California certified specialist lawyer in criminal law with a practice focus on defending marijuana crimes, looks at the four categories of cannabis related charges and possible defenses.
Transcript of California Criminal Lawyer Joseph Tully on Defending a Marijuana Case in California courts.
I’m Joseph Tully, an attorney licensed to practice law in California and I specialize in criminal defense.
If you’re listening to this message, you’re probably asking yourself; “How did I get arrested? I was following the law.” The short answer is that many times, law enforcement doesn’t know or does not care about the Medical Marijuana Laws that we have in California, and this attitude is echoed through the D.A’s office and often throughout the court system as well.
I’m going to talk to you today about four different categories of charges that can be used against you in California, related to marijuana.
California Law: Compassionate Use Act – Medical Marijuana Program Act
The first thing that you should know is that California law differs from Federal law in that in Feral law marijuana today is still illegal, whereas in California we have defenses to it; either the Compassionate Use Act or the Medical Marijuana Program Act.
Marijuana Felony Charges: Health and Safety Code 11358, 11359, 11360
The first group are all felonies. They are under the Health and Safety Code 11358, 11359 and 11360. The Compassionate Use Act and the Medical Marijuana Program Act do apply to these charges. Another thing that these three charges all have in common is that if you were to be convicted and have to do a prison sentence because of them, you would do prison time in County jail under the law
The first charge is California’s Health and Safety Code 11358, which is cultivation. For 11358, you can receive diversion, meaning you do a program through the court system where you take some classes and do some testing and if you have no further problems, and don’t get into any further criminal action, you can get your case dismissed and scrubbed off your record.
The next charge is California Health and Safety Code 11359, which is possession for sales, so not actual sales but just possession for sales.
The third charge is Health and Safety 11360, which is transportation or actual sales. For 11360, one of the dangers of that charge is that if you are driving your own car, with your own marijuana in it, and you get convicted of that charge, you would be treated the same as a drug dealer.
What you want to do in court, to defend that charge assuming you don’t have a defense under the Compassionate Use Act or the Medical Marijuana Program Act, is, you want to pursue a charge in the third category that I will be talking to you about in just a few minutes.
Marijuana “Wobbler” Charges: Health & Safety Code 11366 and 11366.5
The next group of charges are 11366 and 11366.5. Those charges are considered wobblers meaning they can be felonies or they can be misdemeanors, it depends on the mood of the D.A. Sometimes you’ll might do a plea bargain for these charges because they can wobble down to a misdemeanor.
The first charge here is the 11366, maintaining a place for sales, use, or manufacture of illegal drugs. The second charge is 11366.5, which is kind of the landlord version of that.
Even though these two charges are wobblers, the downside of these two charges is that if you were to be convicted and had to do a prison term, you would actually have to go to a real prison to do it, rather than County jail. The Compassionate Use Act and the Medical Marijuana Program Act both apply to 11366 and 11366.5.
Misdemeanor Marijuana Charges: California H & S Code 11357a and 11357c
The next category of charges are only misdemeanors, and those are Health and Safety Code 11357a and 11357c. You can receive diversion for both of these charges, and The Compassionate Use Act and the Medical Marijuana Program Act do apply. The first charge, 11357a is possession of concentrated cannabis. So hashish, oils, any time the product of marijuana is concentrated, this charge would apply.
Possessing more than an ounce for your own personal use will be 11357c, which is a misdemeanor. For these two charges, you can only get County jail. Diversion does apply and The Compassionate Use Act and the Medical Marijuana Program Act apply to these.
Health and Safety Code 11379.6 – Concentrated Cannabis Special Conditions
The last charge that I am going to talk to you about is in a category all its own. If you were convicted of this charge you could end up in prison. Health and Safety code 11379.6 applies to manufacturing concentrated cannabis under certain conditions.
This 11379.6 charge was passed in order to be able to convict people who were making “Angel Dust”. California District Attorneys can now apply this charge to making concentrated cannabis and The Compassionate Use Act and the Medical Marijuana Protection Act do not apply to this charge. This is a very dangerous charge.
California Compassionate Use Act and Medical Marijuana Program Act Defenses
You can be arrested under any of the previous charges that I mentioned, for any of these situations; for a personal situation, if you are a member of a collective, or if you are running a dispensary, AKA a storefront collective. The Compassionate Use Act and the Medical Marijuana Program Act apply as a defense, if you are a qualified patient, meaning you have a recommendation from a doctor that marijuana is beneficial for a symptom that you have, or a condition that you have.
So, you don’t need an actual physical piece of paper for this defense to apply, just an oral recommendation is good, you can use The Compassionate Use Act and the Medical Marijuana Program Act as a defense, even if you have an expired recommendation, as long as your condition or symptoms are still bothering you at that time. In other words, just because you are diagnosed as a diabetic in 2013 and a doctor says medical marijuana will help you, you don’t go to the doctor for two years, that doesn’t mean that your diabetes goes away because your medical marijuana recommendation for it expired, you’re still a diabetic, and being a diabetic, you would still be able to validly apply The Compassionate Use Act and the Medical Marijuana Program Act.
Hiring the Best California Marijuana Defense Criminal Lawyer
People often wonder “At what point should I hire an attorney? How can I find the best criminal lawyer to defend me against California marijuana charges?”
You should hire your criminal attorney at the earliest possible stage as a good attorney can guide you through this process and hopefully be able to spare you from some pain, maybe even avoid charges altogether.
When evaluating an attorney, some questions that you might want to know, are how long has the attorney been practicing? Are they a certified specialist or not? To be a certified specialist you have to have certain qualifications, including experience that you had in criminal law, length of time you have been an attorney, and you have to take and pass a test. So, someone who specializes in criminal law will be more versed, more educated, and more experienced in giving you guidance on a criminal law case.
You also want to be cautious when talking to an attorney because felony cases have two parts to them. They have a preliminary part, and a jury trial part. The jury trial part comes after the preliminary part, and that’s really where the high stakes are.
You want to make sure that when you are speaking to an attorney, that they are prepared to represent you throughout the entirety of the case, and not just for the preliminary part. Another thing that you want to ask is how often they go to jury trial and when was the last time they went to jury trial.
In my experience, attorneys that go to jury trial are often more aggressive and often get better results for their clients. If the D.A. knows the defense attorney isn’t going to back down, and will go to trial, they will often make a better deal than if they know that an attorney will back down rather than go to jury trial.
I think that you need to look at who this attorney is that you’re sitting across from, where their heart is - are they going to put everything they have into defending you? That’s what you need to look for, you want to look for someone who is going to have your back, not someone who is afraid to make waves.
Everything that I have talked to you about is related to the basics of defending a marijuana criminal case in California, anything else you really need to speak with an attorney specifically about the facts of your case. Again, I’m giving you law based upon California law, not Federal law. In Federal law, marijuana is illegal. I hope this was helpful to you and I wish you the best of luck whatever your situation is.
Joseph Tully California Criminal Defense Lawyer – Certified Specialist in Criminal Law