Possession Of Marijuana For Sale

The sale of marijuana is a serious crime in California and could change the trajectory of your life. Although California has been legalizing recreational marijuana since 2018, the legislation is strict on who is allowed to possess and sell it. If law enforcement suspects that you have a large quantity of marijuana to sell or exchange for value, you will be charged with a violation of California Health and Safety Code 11359.

A conviction under HSC 11359 could attract a long jail term, hefty fines, and a lifetime criminal record that could hamper your future employment, housing, and professional licensing prospects. You need not go through this overwhelming legal hurdle on your own. Our team at Desert Defense Lawyers in Palm Desert is experienced and will fight to defend your rights, challenge the prosecution's evidence, and achieve dismissal or a reduction of your charges.

Legal Definition of Possession Of Marijuana For Sale

The California marijuana legal landscape remains complicated despite the widespread assumptions of complete legalization. California has given a narrow and specific framework for the legal sale and distribution of cannabis. Section 11359 of the California Health and Safety Code specifically states that it is a direct crime to possess marijuana with the intention of selling it without being a business that has the requisite local and state licenses.

This legislation basically differentiates between personal use and for-profit possession. If you don't have a license to sell recreational or medical marijuana, possession of the drug will be prosecuted under this code if there is evidence that you intended to sell it.

Legal Definition of Marijuana

According to the law, marijuana is the entire plant of Cannabis sativa L., whether it is growing or not. This definition is expansive and covers all parts of the plant, including the following:

• Seeds

• Leaves

• Stems

• Resin obtained from any part of the plant

• Any derivative, compound, mixture, salt, or preparation that is made out of the plant, its seeds, or its resin

The marijuana definition under California excludes the following:

• Industrial hemp is a special form of cannabis grown as a source of fiber with a low concentration of psychotropic THC (tetrahydrocannabinol). The chemical that causes the psychoactive effects.

• Food, beverages, and oral or topical products made from parts of the plant that are not controlled. These are not subject to the same legal restrictions as THC and can be legally produced and sold.

Crucial Elements the Prosecutor Must Prove

The prosecutor carries the heavy burden of proving certain elements of the legal aspects beyond a reasonable doubt to secure a conviction against you. These elements are:

• You possessed a controlled substance

• You were fully aware of both its presence and its nature, for example, marijuana

• You possessed a usable quantity of the drug

• You were going to sell it

If the prosecution is unable to demonstrate any of these key elements, the charge lacks legal standing in court.

• The Substance Found Should Be Marijuana

For the court to convict you, the prosecution must scientifically prove that the substance in your possession is marijuana. Law enforcement officers use preliminary field test kits during training to detect the appearance or smell of a substance.

However, such techniques cannot be deemed flawless. Therefore, they may be disputed because they can lead to false positives or false identifications, which can weaken the prosecution. Your defense lawyer can use the fact that these early identifications are subjective to your advantage.

Identification is done through forensic laboratory testing, using complex techniques like gas chromatography-mass spectrometry to isolate THC. The evidence can be challenged, and the charges are dismissed if the prosecution fails to conclusively prove that the substance is marijuana rather than a legal lookalike.

Meaning of Possession (Actual, Constructive, and Joint)

Most defendants wrongly believe they can only be charged if caught with marijuana. This is a fatal fallacy. In California law, there are three types of possession.

1. Actual possession—This is the possession where you are in physical possession of marijuana, such as in your pocket or bag.

2. Constructive possession—This is more complicated since it will be used when you are not physically in contact with the drug, yet you are in control of or have access to the place where the drug is kept. If you own the key to a locked shed on your property and marijuana is found there, you may be in constructive possession.

3. Joint possession–This occurs where you share possession of the marijuana with another individual, for example, where you and a roommate share a stash of marijuana that is concealed in a common corner of your shared apartment.

Proving the “Intent to Sell”

Intent to sell is the most disputed element of an HSC 11359 charge. Since it is legal to possess a given quantity of marijuana to use personally, the prosecutor should prove that you did more than just consume it, but distributed it.

Because you are not likely to admit to a crime, the prosecution often uses circumstantial evidence to determine what you intended. They will seek signs such as weighing scales, small plastic baggies, or more than one cell phone used to book the transactions. They can also mention the manner in which the marijuana is packaged, that is, in equal or pre-portioned amounts, or finding huge sums of money or weapons beside the drugs. Although each of them is legal on its own, courts tend to introduce them as the tools of the drug trade.

The Quantity of Marijuana

The quantity of marijuana you have is one of the areas of concern for the prosecution. Although the California law does not establish a particular numerical limit, which will automatically result in a charge of possession for sale, large amounts of items that obviously surpass the legal limit of personal use will raise a lot of suspicion.

However, the amount is seldom sufficient to secure a conviction. The reason you need larger quantities may be that you have a high tolerance level and use it more often, or that you store it for future use due to storage constraints. Your lawyer can argue that quantity is one of the circumstantial pieces of evidence that should be considered in light of your life and medical records.

Sentencing and Punishment for Possession of Marijuana for Sale

The effects of an HSC 11359 conviction will vary greatly depending on the particulars of the case and your criminal background. Although in most instances, the law categorizes possession of marijuana for sale as a misdemeanor, some aggravating circumstances, including the amount of marijuana or a history of conviction, may make the offense a felony. The state's justice system considers these crimes serious, and you must understand what is at stake.

Misdemeanor Punishments and Probation Restrictions

For a misdemeanor, you will be subjected to a possible jail sentence of up to six months in a county jail and a fine of up to $500. However, summary or misdemeanor probation can be granted to most first-time offenders or those with minor records instead of direct incarceration. This provision does not imply that you are not obliged.

A drug charge on probation will have many strict conditions that you are supposed to abide by to escape jail time. You might have to do the following:

• Pay restitution

• Do community service

• Undergo compulsory drug counseling or therapy

• Undergo drug tests on a regular and random basis

• Allow law enforcement to search your person or property at any time, with or without a warrant

Felony Punishments

A felony may be charged against you if there are aggravating factors. You can be charged with a felony if you have a prior conviction of a serious or violent felony, including murder, a sexually violent crime, or gross vehicular manslaughter. Also, the presence of two or more previous misdemeanor convictions for the possession of marijuana for sale is an antecedent to the felony.

Probably worst of all, should the prosecution be able to show that you knowingly intended to or tried to sell marijuana to a minor below the age of 18, then you will be charged with a felony. A conviction of a felony may lead to a term of 16 months, two years, or three years of county jail, which is basically altering your life.

Ineligibility for Drug Diversion Programs

Among the most tragic facts of having to stand the charge of HSC 11359 is that you are usually ineligible to be a participant in drug diversion programs. Such programs are only granted to defendants who are accused of simple possession of marijuana or the illegal cultivation of marijuana to be used personally, where they can be treated in place of a dismissed charge.

The court does not wish to grant this leeway, as possession of a sale signifies a business venture rather than an individual endeavor. Often, the most appropriate action would be to have your lawyer seek to have the possession charge for selling reduced to simple possession, which would allow you to be diverted and avoid a permanent criminal record.

Powerful Legal Defenses to HSC 11359 Violation Cases

An accusation of a crime does not always mean one is guilty. There are a few effective defense mechanisms to refute the story presented by the prosecution and protect your interests. A skilled criminal defense attorney will thoroughly review the evidence that is brought against you to identify any loopholes, inconsistencies, or breaches of your constitutional rights.

The Marijuana Was for Personal or Medical Use

The simplest defense is proving that the marijuana was only used personally or medically. When the amount discovered corresponds to a personal habit, then your lawyer can claim that the prosecution lacks any evidence of intent to sell.

If you are a medical marijuana patient or a named primary caregiver of a person with a valid medical need, you are legally allowed to have quantities that are greater than the standard recreational amounts. With the medical records and documentation of your status as a caregiver, you can offer the court a legal justification for the quantity you have that is legitimate and legal.

Lack of Knowledge or Lack of Possession

If you did not know that the drug was marijuana, you could not be convicted. This defense is common where marijuana is found in a common living area or a borrowed vehicle. If you can prove the drugs were hidden and belonged to someone else, the prosecution will fail. If the evidence demonstrates that you did not control the marijuana, then you lack legal possession of it.

Misidentification of the Substance

The process of marijuana identification by law enforcers is inaccurate. Officers can use subjective judgments, such as smell or looks, which prove unreliable in dark environments or when the officer is under stress. If the substance has not undergone a strict and laboratory-proven test, your lawyer can cast doubt on the validity of the identification.

Your lawyer can scrutinize the chain of custody to find any gaps in the documentation or possible contamination to argue that the evidence against you is unreliable and cannot qualify as the legal standard of proof.

You are a Primary Caregiver

The Medical Marijuana Program of California offers some legal safeguards to registered primary caregivers of qualified patients. If you can produce evidence that you are a registered caregiver and that the marijuana in your possession was used to treat a medical patient who was authorized to be treated with it, then this is a viable defense.

The major defense here is adherence to the state documentation and quantity limits. If you can prove that you were acting out of the goodwill of a patient whom a doctor advised, the court ought to acknowledge the validity of your possession.

No Intention to Sell

You can argue that the marijuana was of personal use to invalidate the intent aspect of the charge. You can challenge the prosecution by demonstrating the absence of any distribution equipment, including scales, baggies, or ledger books. If your lawyer can prove that your lifestyle, health needs, or habit of buying in bulk to store at home nullifies the case, then it is nullified. Without any record of monetary transactions or promotional motives, the state's argument regarding your intent is inherently invalid.

Illegal Search and Seizure

One of your defense points is your constitutional rights. The Fourth Amendment secures you against random searches and seizures by the police. If police officers have raided your house or searched your car without a proper warrant, there was enough probable cause, or there was a known exception; the evidence found by the police is inadmissible.

A professional lawyer will seek to suppress this evidence. When the court allows such a motion, the prosecution will, in most cases, realize that their case does not have the evidence to go forward, and the case is usually dismissed.

Related Offenses to the Possession of Marijuana for Sale

Prosecution tends to pile other charges on you when charging you with the possession of marijuana to sell. Even when you are challenging the main charge of possession with intent to sell, prosecutors tend to seek a wide scope of allied crimes against you. These associated crimes have their own elements, sentencing policies, and defense plans.

Simple Possession of Marijuana (HSC 11357)

Marijuana possession is often a secondary or other offense that is charged. In HSC 11357, it is still a crime for an adult above 21 years old to possess marijuana in excess of the state-authorized amounts of marijuana flower, that is, more than 28.5 grams of marijuana or more than 8 grams of concentrated cannabis. Although this type of conduct is a misdemeanor in most cases, the punishment may be considerable and may include up to 6 months in county jail and a fine of up to 500 dollars.

For individuals under the age of 21, possession of any quantity of marijuana is normally considered an infraction. Prosecutors will pursue this charge if they are unable to prove the intent to sell.

Sale or Transportation of Marijuana (HSC 11360)

Possession for selling marijuana is different from transportation and sales. According to HSC 11360, the transportation, importation, or sale of marijuana without an authoritative license is illegal. The prosecution does not have to demonstrate that you had the marijuana for a long time; merely having the substance with the purpose of selling it would be enough to warrant an arrest.

If the accusation is carrying more than 28.5 grams of marijuana or selling it to a minor, the misdemeanor may be increased to a felony. The defense in this case should put transportation into question. They can argue that the movement of the substance did not entail a commercial intent to sell or that the requirement of having a license is invalid for your particular activity.

Contact a Drug Crimes Defense Attorney Near Me

Any criminal charge under California marijuana laws can put you in a dangerous situation. Do not jeopardize your future by navigating the case without consulting an experienced professional. The police reports are often full of misunderstandings and exaggerated claims, turning a simple error into a life-changing accusation of intent to sell.

You can be confident that we have the experience to develop a strategic defense to your case at Desert Defense Lawyers, whether it is circumstantial evidence, possession, or even illegal police conduct. We will fight for your rights and defend you in court throughout Palm Desert, CA. Call us now at 888-293-0396 to reserve your consultation and start the process of regaining your future.