As a leading cannabis attorneys in San Jose, CA, we get a lot of questions about Prop 64. These are the most frequently asked questions we receive.
When does Prop 64 go into effect?
Since Prop 64 did not designate a specific effective date, it became effective on November 9, 2016. “An initiative statute or referendum approved by a majority of the votes thereon takes effect the day after the election unless the measure provides otherwise.” (Calif. Const., Art. 2, § 10(a).)
Prop 64 makes immediate changes to the laws surrounding growing, possessing and transporting marijuana. However, some of its other provisions do not take immediate effect. For example, people will not have a place to legally buy non-medical marijuana until stores are licensed. California has until January 1, 2018 to begin issuing these type of retail licenses.
Under Prop 64, can I grow my own marijuana?
Prior to Prop 64, California treated cultivation of marijuana as a felony offense under Health and Safety Code Section 11358. It is now legal for adults who are 21 years and older to plant, cultivate, harvest, dry or process up to six (6) living marijuana plants out of public view.
Cultivating more than 6 plants remains a misdemeanor offense punishable by up to six months in jail or a $500 fine. There are some exceptions to this. Cultivating more than 6 plants becomes a felony under Health and Safety Code Section 11358 if any of the following is true:
- You have a prior conviction for one of a list of particularly serious violent felonies. (These type of prior felonies are sometimes referred to by the slang term, “Superstrikes” and include crimes like murder, sex crimes against a child under 14 or gross vehicular manslaughter while intoxicated).
- You have been been convicted of any sex crime that requires you to register as a sex offender.
- You have two (2) or more prior misdemeanor convictions for marijuana cultivation.
- The offense resulted in intentional division of public waters, introduction of harmful chemical into waters or otherwise caused substantial environmental harm to public lands.
- Defendants who fall into any of these categories are punishable by a felony sentence of sixteen (16) months, two (2) years, or three (3) years in jail despite marijuana legalization.
Only persons aged 21 and older can legally cultivate cannabis. Under Prop 64, people from 18 to 20 years old who cultivate 6 plants or less can be charged with an infraction and a $100 dollars fine. 18 to 20 year olds who cultivate more than six plants normally can be charged with a misdemeanor. However, just like 21 year olds, 18 to 20 years who cultivate more than six plans are subject to possibly being charged with a felony depending on their record and the manner of cultivation. (See above list of four factors.)
Minors under 18 who cultivate marijuana can be charged with an infraction and can be sentenced to drug counseling and community service.
Also, as mentioned above, California’s marijuana legalization law imposes restrictions on the manner in which cannabis is cultivated. In an adult cultivates no more than 6 plants for personal use but the plants are visible to the public or not kept in a locked space they can still be charged with an infraction and fined.
Where am I allowed to smoke marijuana under Prop 64?
Interestingly, Prop 64 added Business and Professions Code Section 26200. This statute allows guidelines for businesses that may want to set up “pot bars” or “marijuana gardens” for customers in California.
This statute states that a local jurisdiction may allow a local business to set up an area for smoking, vaporizing and ingesting marijuana or marijuana products if:
- They are a licensed retailer or microbusiness permitted by local law.
- They restrict access to the area where marijuana consumption is allowed to persons 21 years of age and older.
- Marijuana consumption is not visible from any public place or non-age restricted area.
- Sale or consumption of alcohol or tobacco is not allowed on the premises.
It will be interesting to see how many “pot bars” of this type will be opened and what local jurisdictions will allow them. For now, marijuana consumption in private homes remains the safest option.
Am I eligible for expungement under Prop 64?
In addition to “redesignation,” Prop 64 added a procedure for persons to have their prior marijuana convictions cleared or “expunged.”
Penal Code section 11361.8(f) provides that persons who have completed their sentence for qualified marijuana offenses can now apply to the court to “seal the conviction as legally invalid” in appropriate cases.
In other words, If the prior illegal conduct has been legalized by the passage of Prop 64, the court is authorized to seal the conviction completely as “legally invalid.”
Can I have my gun rights restored under Prop 64?
Yes, if the court grants a request to redesignate a felony offense as a misdemeanor or infraction, thereafter the crime will be treated as a misdemeanor or infraction for all purposes. Unlike similar provisions in Proposition 47, the redesignation does not preclude the right to own or possess firearms. (See Pen. Code § 1170.18(k).)
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