Cannabis sales are not unregulated, even though California has legalized marijuana use for recreational purposes for adults over 21. Having marijuana in your possession with the intent to sell it is still illegal and carries heavy penalties. Prosecutors will pursue charges under California Health and Safety Code 11357 which prohibits possession of marijuana for sale.

Since drug crime convictions carry harsh consequences, consider hiring a drug crime defense attorney to review your case and help develop a defense strategy. If you are in the Monterey area, we at Monterey Criminal Attorney are ready to defend you. Get in touch as soon as possible so we can start preparing a suitable defense strategy.

Possession of Marijuana for Sale Per the Law

You can lawfully consume up to 28.5 grams (one ounce) of marijuana flower and 8 grams of concentrated cannabis products if you are 21 years of age or older. You are not to share or sell this quantity of marijuana. It is strictly for personal use. Violating these provisions or having items like scales or packing that imply sales could result in prosecution for possession for sale since it violates Health and Safety Code 11359.

Per HSC 11018, cannabis includes all parts of the Cannabis Sativa L. plant, regardless of its growth stage. It includes stems, seeds, leaves, and, most importantly, the blooming buds or marijuana flowers. Cannabis also includes concentrated forms of the resin harvested from the plant and any item containing these components.

Federal law still lists marijuana as a Schedule I restricted substance, even though California has legalized it for recreational use. This classification suggests that the government believes marijuana to be highly addictive and to have no recognized medical advantages. The U.S. Code's Title 21 governs marijuana and is part of the Controlled Substances Act (CSA), which sets strict federal laws for it.

This implies that if you possess, consume, or distribute marijuana, you could still be charged with federal crimes even though it is legal in California. Federal enforcement has, however, decreased recently, especially for minor offenses.

In some circumstances, federal marijuana laws are more authoritative than state ones.

  • Even if a state legalizes marijuana, federal law forbids its possession on land under federal jurisdiction, including national parks, military bases, and government buildings.
  • State-level legalization of marijuana does not change the fact that it is still unlawful under federal law because it is considered interstate trade. Even in areas where marijuana is legal, federal law enforcement may nevertheless become involved, particularly in situations involving minors or large-scale production or distribution operations.

Elements Prosecutors Must Prove to Secure a Conviction

The prosecution must prove several essential components beyond a reasonable doubt to secure a conviction for possession of marijuana with the intent to sell. These include the following:

  1. The Substance Was Marijuana

Marijuana is the main target of the prosecution. Conviction for possession, much less possession for sale, is impossible if forensic testing shows that the material you possessed was not marijuana but rather a legitimate product like hemp. Prosecutors must prove the substance you had was, in fact, marijuana.

There are several ways to establish this proof. Depending on the location of the encounter, police could conduct field testing by the side of the road or in your house. These tests are subject to legal challenges and certain restrictions.

A chemical analysis in a lab is the most dependable way to identify the item. Test results proving the substance was not marijuana will result in the charges against you being dropped. As a result, the exact identification of the material will determine how your case turns out.

  1. Possession

The prosecution must establish your possession of the drug beyond a reasonable doubt in one of two ways to prove you were in possession of marijuana for sale.

If the marijuana was discovered immediately on you, for example, in your clothes, bag, or while you were operating a vehicle, you could be in actual possession of it.

If you did not have it on you but still had control over it, you could have constructive possession. This could be comparable to having marijuana stashed away at home but not visible or concealed in a car you were driving, assuming you knew it was there.

Whether you carried it with you or knew where it was, the prosecution must demonstrate that you were in charge of the marijuana.

  1. Usable Quantity

The law is silent on what amounts to "usable quantity.” Courts consider a number of variables to determine whether the amount indicates sales intent or merely personal use. These include:

  • Exceeded legal limits — The evidence for sales intent is strengthened if you possess more cannabis for personal use than the permitted amount (28.5 grams of flower or 8 grams of concentrate).
  • Packaging — You could be found guilty if you are discovered using little bags, scales, or other items that are frequently utilized in marijuana sales.
  • Sales history — Any proof of prior marijuana sales or attempted sales supports the prosecution's case against you.
  • Incriminating statements — It could seriously harm your case if you have made any statements implying that you intended to sell the marijuana.
  • Mixing with sales items — It is a warning sign of possible sales intent when marijuana is found mixed with items that are usually used to sell drugs, like baggies.

Every case is considered independently, and these variables are subject to change. If no additional evidence indicates you intended to sell, you could avoid possession for sale charges even if you have slightly more than the legal limit. On the other hand, if there are more indications of sales, even a lesser sum could convince the jury to convict.

  1. Knowledge

Prosecutors must prove that you knew you were in possession of marijuana and not hemp or some other drug. It could seem apparent, but establishing knowledge is a critical first step for the prosecution. In rare instances, you could mistakenly believe you had hemp. If you can demonstrate that you were unaware that it was marijuana, it could weaken the prosecution's case against you.

The prosecution has several options for demonstrating knowledge. You will demonstrate your awareness of possessing marijuana if you have openly admitted to owning it. If not, they have the option to depend on circumstantial evidence. For instance, if you were seen using marijuana paraphernalia or made statements suggesting you knew about the marijuana, it would strengthen the prosecution's case against you for both knowledge and possession.

It is possible to prove that you knew you were in possession of marijuana based on your behavior during the arrest. Prosecutors will imply "awareness of guilt" in these circumstances. For instance, trying to conceal the marijuana from oncoming police officers could be interpreted as an attempt to avoid being arrested. It indicates that you know you have an illegal substance or have done something unlawful. But keep in mind that this is only circumstantial evidence. Regardless of any criminal behavior, you could have a legitimate reason for seeking to avoid contact with the police, for example, a fear of confrontation. You also do not have to answer questions from the police. You have the right to stay silent.

Note: Being silent or hiding your actions does not always indicate guilt. The particular circumstances of your case determine how much weight to give this evidence. Hiding can affect how a judge or jury perceives your attempt to hide when considered alongside other elements, like any incriminating objects discovered on you or remarks you make.

  1. Intent to Sell

"Selling" in a case involving marijuana possession for sale refers to the intention to carry out a transaction in which you give marijuana to someone else in return for money. Beyond a reasonable doubt, the prosecution must establish this intent. They must first develop a few crucial components.

You cannot give marijuana to someone else without first transferring it to them. Several ways to accomplish this transfer include a delivery service or a direct handoff. Furthermore, there needs to be a value exchange. Usually, the exchange involves money but could also include bartering for other goods or services.

Prosecutors also need to demonstrate your profit motive. They must prove you were meant to make money from the exchange. Legally speaking, giving away marijuana without expecting anything in return does not qualify as selling.

It is critical to distinguish between marijuana sharing and sales. Giving a friend a modest bit of anything for free does not qualify as selling. Still, other acts, like cutting up marijuana into smaller pieces, packaging it for sale, or promoting it to prospective buyers, serve as proof of intent to sell. Prosecutors will use these acts to strengthen their case against you since they conflate sharing with selling.

Prosecutors could use firearms or substantial sums of cash in your home as circumstantial evidence to support their case. However, their assertions have constraints. The mere discovery of weapons or money in the case does not guarantee a conviction. These products have uses that go beyond drug trafficking. A competent defense lawyer could contend that the money is from inheritance or savings or that the gun is for self-defense. The particular context determines the evidence's importance. For example, a hunting rifle secured in a gun safe does not carry the same weight as a loaded handgun found near the marijuana.

Defenses Attorneys Use to Fight Possession Of Marijuana For Sale Charges

The following are the possible defenses a criminal defense attorney could use to fight possession of marijuana charges.

  1. No Intention to Sell

One effective defense against the charges is the lack of intent to sell. Your lawyer can make a strong case for this by demonstrating that the marijuana was intended for personal use only, not for sharing. The success of this defense strategy depends on the following:

  • It is all about quantity. A tiny quantity appropriate for personal use, for example, smoking, proves the counterargument against sales intent.
  • You can further claim that you were not planning to sell by pointing out that you lacked items like scales and baggies typically associated with sales.
  • There is no proof of advertising, price negotiations, or offering to sell

You possessed the marijuana for personal use or medication, all of which are valid justifications for the possession.

The details of your case determine its success. Your lawyer will examine the circumstances surrounding your arrest, witness accounts, police reports, and other proof to create a strong defense against the prosecution's claims of intent to sell.

  1. Lack of Knowledge

The basis of the lack of awareness defense is your claim that you had no intention of selling marijuana and were ignorant of its existence.

This defense has multiple supporting situations. For example, it is possible that someone secretly slipped marijuana into your luggage or other possessions without your awareness. Or conversely, you could have just purchased something, like a used car, that you were unaware contained marijuana. Another possibility is that you thought the material was entirely different, like hemp, and got it wrong.

Establishing a genuine lack of information is necessary to build your defense. Your lawyer will compile evidence to back up your claims. This can entail providing witness testimony from anyone who can confirm that you were not aware of the marijuana to support your account.

An alibi could strengthen your defense. It should demonstrate your absence from the scene when the marijuana could have been placed in your hands. Additionally, receipts or proof of purchase greatly support your case if the marijuana was obtained lawfully, for example, from a licensed dispensary.

Character witnesses that can confirm your integrity and denial of drug use can also help you make a good impression in court.

  1. You Are a Registered and Qualified Caregiver

Registered caregivers for qualifying medical marijuana patients are allowed to possess the patient’s marijuana. Asserting your status as a caregiver depends on a few critical components:

  • At the time of your arrest, you had to have a valid caregiver identification card from the California Department of Public Health.
  • The cannabis in question had to have been obtained exclusively for the individual use of a particular eligible medical marijuana patient that you were registered to treat.
  • The amount of marijuana should also correspond with the patient's documented needs and the doctor's recommendations.

There are, nevertheless, specific difficulties and things to think about. For example, it is your responsibility to verify that you are the patient's primary caregiver and that the marijuana was used only for medical purposes. Furthermore, any proof of distribution, like bulk purchases or packing materials, easily undermines your caregiver's claim.

Therefore, negotiating the legal requirements and evidential obstacles is vital for a successful resolution, even though being a licensed caregiver could help as a defense against possession of marijuana for sale accusations.

  1. The Marijuana Was Discovered During an Illegal Search

Your attorney could file a motion to suppress evidence if you believe police enforcement violated your Fourth Amendment rights by collecting it without a warrant or sufficient justification. This seriously undermines the prosecution's case. If proven, it could result in the charges being dropped.

According to the Fourth Amendment, no one is subject to arbitrary searches or seizures. However, if the police violated your rights during your arrest, prosecutors cannot use any illegally obtained evidence in court. The exclusionary rule strengthens this protection by prohibiting prosecutors from using unlawfully obtained evidence in court.

Your lawyer will submit a motion to suppress evidence. He/she will claim that it was unlawful to conduct the search that turned up the marijuana. He/she will concentrate on a few main points:

  • Search Warrant — Police often require a warrant based on probable cause to search you or your property. Some exclusions apply, like searches conducted in connection with arrests. However, your lawyer will determine if they apply to your situation.
  • Reason for stop — Before law enforcement can stop you, they must have a good reason, like probable cause of a crime. You have grounds to challenge the stop if the officers used a minor infraction to justify a pretextual stop that leads to additional inquiry.
  • Probable cause — A search has probable cause if there is a good faith suspicion that a crime is being committed and the place being searched contains evidence. If the police, in your case, had probable cause, your attorney will ascertain this.

An unauthorized search is a violation of your Fourth Amendment rights, even if you were in possession of marijuana.

Penalties Individuals Found Guilty of Possession Of Marijuana For Sale Charges Face

Possession of marijuana with the intent to sell could result in charges that are either misdemeanor or felony-related.

The following are the punishments under HSC 11359:

Misdemeanor Penalties

If you are 18 or older, this usually applies to misdemeanors. Possible repercussions include:

  • A county jail sentence for six months.
  • There could be a $500 maximum fine.
  • Alternatively, you can have to pay a fine and go to jail.
  • You could also be placed on probation instead of being in jail.

You must abide by the court's orders if you are on probation. Among them are:

  • Having frequent meetings with your probation officer will ensure compliance.
  • Finishing a court-mandated drug or alcohol counseling program.
  • Completing a set number of hours of community service.
  • Taking arbitrary drug tests to prove you are drug-free.
  • Settling any fines and (if any) restitution due to victims from the court.
  • Your privacy is restricted because probation authorities can inspect you or your property without a warrant to verify compliance.

While summary probation is preferable to jail time, it is not a given. The judge can grant it based on specific conditions, such as:

  • The severity of the offense — The judge decides how serious the offense is based on the quantity of marijuana involved and any aggravating circumstances, such as sales to minors or prior convictions.
  • Criminal history — If you have never been convicted, you are usually given more consideration.
  • Cooperation with law enforcement — Being cooperative during the inquiry could be advantageous.

Felony Penalties

Some circumstances could result in felony charges, such as:

  • If you knowingly employ a person under 21 to transport, cultivate, sell, or promise to sell marijuana,
  • Should the offense entail knowingly attempting to sell marijuana to a person under the age of 18,
  • If you were previously convicted of violent or sexual felonies,
  • If you have been convicted of selling or transporting marijuana in the past twice or more times,
  • If you tried to bring more than 28.5 grams or more than 4 grams of marijuana into or out of California, or if you attempted to bring more than that.

You will face the following penalties:

  • A jail sentence of 16 months, 2 or 3 years.

Drug Diversion for People Convicted of Possession of Marijuana for Sale

Marijuana possession with the intent to sell is a serious violation. You are not eligible for diversion programs if, as a first-time offender, it was discovered that you were in possession of modest amounts of controlled substances for personal use at the time of the arrest. Through these programs, you can have charges dropped in exchange for completing counseling, educational courses, and community service.

Under HSC 11359, drug diversion is not a possibility because possession for sale suggests intent to distribute. However, based on the details of your case, there could be other options. A competent defense lawyer could work out a plea deal with the prosecution. This would result in a lesser charge, simple possession, and a shorter sentence. Your lawyer can represent you in court and request a more compassionate punishment if a plea deal proves unattainable.

Find a Drug Crimes Defense Attorney Near Me

Although facing possession of marijuana for sale charges is a serious situation, you do have legal recourse. You can hire skilled criminal defense attorneys who can defend you in several ways. If you are in the Monterey area and facing these accusations, talk to our drug crimes defense attorneys at Monterey Criminal Attorney as soon as possible. Well-informed legal representation and prompt action can significantly impact your case. Call us at 831-574-1791.