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Adult Use of Marijuana Act (Proposition 64) Passed in California. What Does It Mean, Particularly for Those Facing Criminal Charges?

Posted by Joseph Tully | Jan 20, 2017

The November 8th election delivered a presidential upset, but there was some good news in California. Voters approved the Adult Use of Marijuana Act (AUMA) by a 57 to 43 percent margin. AUMA not only legalizes the use of marijuana for those aged 21 and over – no need now for concocting ailments to receive medical marijuana privileges – but the law is retroactive. That makes it a true criminal justice reform victory.

Before AUMA, anyone growing just one plant could get hit with felony charges. Now, many people facing felony charges for possession or cultivating a few plants are having their cases treated as misdemeanors. Some are finding their charges dismissed. It's a small but important shift in the battle for common-sense drug laws and sentencing.

Allowed Under AUMA

AUMA allows people over 21 to “possess, carry, share and buy” up to an ounce of pot and marijuana-infused products and a quarter-ounce of concentrate. Residents can also grow up to six cannabis plants at home in a “discrete enclosed location” for personal and social use. So there's no growing pot on the front porch, but the back porch with a locked door in a fenced-in yard might fit the bill.

Smoking in public is still illegal.


AUMA created two different excise taxes on marijuana. Along with a 15 percent tax on retail pot, there's a cultivation tax on flowers and leaves. In addition to these state taxes, local municipalities can impose their own taxes. All this tax revenue goes into the California Marijuana Tax Fund, which covers administration and enforcement costs.

Once these costs are covered, revenue heads into various drug treatment and enforcement programs. That includes $3 million annually for the next five years to the California Highway Patrol for developing marijuana impairment protocols for drivers.

Resentencing and Record Destruction

A criminal charge limits a person's opportunities in employment, housing, public service and other situations. Now, thousands of Californians can begin a new life without such a conviction on their record. Proposition 64 authorized resentencing and record destruction for individuals with prior marijuana convictions that were no longer illegal under the new law.

People currently in jail can petition for a sentence reduction if the crime is now a lesser offense under AUMA. Such petitions must be accepted with one caveat: the petitioner can't pose “an unreasonable risk to public safety.”

The bottom line is that thousands of non-violent offenders will get out of jail, and they and prior offenders can start new lives. They can even smoke some pot without fear.

Underage and Caught with Pot

Under the new law, anyone under age 18 and found guilty of possession of not more than 28.5 grams of marijuana or not more than 4 grams of concentrated cannabis have committed an infraction. Penalties include:

  • First offense – four hours of drug education or counseling and up to 10 hours of community service.
  • Second or subsequent offense – six hours of drug education/counseling and up to 20 hours of community service.

Those over 18 and under 21 are subject to a fine of up to $100.

Teenagers younger than 18 caught with higher amounts of marijuana face additional hours of drug counseling and community service.

However, anyone over 18 caught with more than the permissible amount still faces up to $500 in fines and six months in county jail. If caught with permitted amounts of pot in a school zone, the penalty is up to a $250 fine for a first offense and up to $500 and 10 days in jail for a subsequent offense.

The Trump Effect

Although now legal for recreational use in seven states and Washington D.C. and in 24 states for medical use, marijuana is still banned under federal law. Will President Trump crack down on legal state pot? It's entirely possible, based on the strong anti-marijuana views of many his advisers and potential cabinet appointments.

On the other hand, maybe “Making America Great Again” will include “Making America Free Again” or “Making America Healthy Again.” There are a lot of compassionate, intelligent people in California who can have our state economy up & running in no time, providing organic holistic medicine to replace corrupt, expensive pharmaceuticals.

Dr. Laurence Badgley, MD, a physician that has decades of experience in medical cannabis, thinks the legalization of recreational will increase medicinal.  With the stigma lifted, more will turn to the healing powers of the plant. Dr. Badgley is the firm's defense expert witness in medicinal cannabis trials.

Do we really want to see children needlessly suffering from seizures because the pharmaceutical companies want us to believe a cure isn't possible and to be reliant on their poisonous products?

If Trump really is going to act as he has branded himself as an outsider, we are here and waiting. But to warn you, we'll know the truth and we will not give up.

We don't know what the future holds, but for now, adult California residents can enjoy recreational pot without fear of prosecution. In these uncertain times, that's a big plus.

Facing criminal trouble in Northern California? Call the experienced drug defense lawyers at Tully – Weiss.

About the Author

Joseph Tully

Founding Partner, Criminal Law Specialist Our founding attorney, Joseph Tully, is sought out for his expert legal advice throughout California. With over 20 years of experience as a criminal lawyer, in 1000+ felony and other cases, Tully served as felony trial counsel as a public defender before...