Growing Marijuana in California: Here's the Law

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Growing Marijuana in California: Here's the Law

(Photo by David Downs)

Californians legalized medical marijuana cultivation in 1996, creating a medical defense in court that allows the use of the herb to treat people who are suffering from things like chronic pain, anxiety, and insomnia. However, it still remains illegal under federal law to grow, sell, or use marijuana. Usually, medical marijuana growers and providers who operate within state regulations and treat their customers and neighbors well don’t have any trouble with the federal government. But, what happens if they do? Read on to find out more about what can happen to someone who gets busted for selling marijuana – even for medicinal purposes.

1. California Law

Under California Law, possession of one ounce of marijuana or less (that’s only 28.5 grams) is an infraction, punishable with a $100 fine. Possession of larger amounts of marijuana is considered a misdemeanor. Punishments for it include an up to $500 fine and six months in jail. Possession with intent to sell and cultivation are both considered felonies, which carry possible state prison sentence. 

So, if you’re busted by the police for growing marijuana, you will need a skilled criminal defense attorney to try to beat the rap, or failing that, to mitigate your punishment as much as possible. Whether you actually end up doing jail time will depend on things like what county you’re busted in, how many plants you were busted with, and whether or not you have any sort of prior criminal record.

2. Federal Law

It is important to stress that even if you are growing marijuana in full compliance with California law, you can still be taken down by the federal government under the Controlled Substances Act. Under federal marijuana law, there is no such thing as medical marijuana. There is just marijuana, and it’s highly illegal, no ifs ands or buts!

In addition to marijuana being federally classified as a Schedule I substance, right up there with heroin, the government’s punishments for growing marijuana can be harsh. They do not care if your plant has just sprouted; under a typically nasty quirk of federal law, once your plant is growing, it is considered a full plant and counts as 100 grams of marijuana!

According to California NORML, every single medical marijuana defendant who has gone to trial in federal court has been convicted. Sentences have ranged from one day in custody to twenty years.

3. Know the Law

If you are caught, there are many factors that can seriously affect the amount you will be fined and how severely you will be punished. For example, if the cops see baggies and scales, that’s evidence of your intent to distribute – which might all by itself raise your case from a simple possession misdemeanor to a felony carrying potential prison time! If you grow marijuana near kids or a school, your punishment will be harsher. 

If you’re growing, the best way to avoid harsh state penalties is to make sure that you’re not growing an excessive number of plants. Smaller grows are less likely to come to the attention of the authorities in the first place, but even if you are busted, the cops and prosecutors are going to care a lot more about the bigger operations.  So how much is too much?

The basic rule of thumb is that you want to grow in an amount that’s consistent with the medical needs of whoever is growing - whether that’s just you, or whether it’s a collective of people. For example, say you’re arrested with three hundred plants. That’s an awful lot of plants for one person’s medical needs, and you’re likely to be charged with a felony. BUT, if you have thirty medical marijuana patients who are all willing to swear in court that your grow is a collective grow to provide for everyone’s medical needs, then it’s no longer a matter of one person with 300 plants, but instead a much more reasonable 10 plants per person. If 300 plants is an amount that’s reasonable for those 30 people (based on their doctor’s recommendations), then your grow may be perfectly legal under California law. Some California communities are moving to ban all home-growing, so check local ordinances.

Keep in mind, the feds generally don’t take any cultivation cases under 100 plants, which is the threshold for a mandatory minimum sentence in federal court.

4. Know Your Rights

A cop cannot come into your house unless you invite them in or they have a search warrant. Even though it’s usually fairly easy for police to obtain a search warrant, you should still make them do it. This is because your lawyer can possibly fight the warrant later on, whereas if you just invite the cops in, you have no recourse. 

Although you should always be polite and respectful to the cops, you do not have to speak to them at any time, and it’s perfectly legitimate to (politely!) refer them to your lawyer. Remember that the police are allowed to lie and manipulate you, and it’s best not to make any statements to them, even casually. If the cops are seriously after you, you are almost never going to be able to talk your way out of trouble, so it’s good advice to just shut up and invoke your right to counsel. 

If you have a grow operation or a dispensary, get yourself a lawyer before you get arrested. The lawyer can answer your questions, assist you in making sure that your operation is fully compliant with state law, and act as a buffer between you and the authorities should that become necessary.