Proposition 64 – Legalization of Marijuana

On June 8, 2016 California voters passed Proposition 64 which decriminalized the possession of less than an ounce of marijuana for those 21 years of age or older.  Proposition 64 also made many other sweeping changes regarding the laws surrounding marijuana possession.  Here are some of the most important changes:

  • Possession, processing, transportation, purchasing, or giving away without compensation to adults of less than an ounce of marijuana is now legal;
  • Possession, processing, transportation, purchasing, or giving away less than 8 grams of concentrated cannabis (butane honey oil or “wax”) is now legal;
  • Possession, planting, cultivating, harvesting, drying, or processing of six marijuana plants or fewer is now legal;
  • Smoking or ingesting marijuana or marijuana products is now legal;

Still Illegal

It is still illegal to distribute marijuana to people under 21.  It is also still illegal to drive under the influence of marijuana (Vehicle Code § 23152(e)).  Using marijuana in public, smoking marijuana where tobacco is prohibited, and possessing marijuana on school grounds is still illegal.  Using marijuana while driving or riding in a car is still illegal, as is having an open container of marijuana in a moving vehicle.  Making butane honey oil without a license is still illegal.

It appears that it is now legal to drive with less than one ounce of marijuana in a car, but this is still an unsettled area of the law.

Retroactivity – Similar to Proposition 47, Proposition 64 allows for the retroactive reclassification of marijuana violations.  If you have such a violation, you can contact an attorney for help or the courts should have forms available for self-help.  Those with the following offenses should be able to file a petition to get the offenses dismissed:

  • Health and Safety Code (HSC) § 11357(a) – possession of less than 8 grams of concentrated cannabis;
  • HSC § 11357(b) – possession of less than 28.5 grams of marijuana (formerly an infraction);
  • HSC § 11358 – cultivation of marijuana if was for 6 plants or fewer;
  • HSC § 11360 – transportation, if for less than 28.5 grams of marijuana or 8 grams of concentrated cannabis;

Reduction to Misdemeanors

              If convicted of the following offenses you can petition for a reduction of a felony to a misdemeanor:

  • HSC § 11358 – cultivation of more than 6 plants will be reduced to a misdemeanor
  • HSC § 11359- Possession of marijuana for sale – Will be reduced to a misdemeanor with a sentence of no more than 6 months in jail. However, if one has two prior convictions for this offense possession for sales can then be charged as a felony with a maximum sentence of 3 years in state prison.
  • HSC § 11360 – Sales of marijuana – This is now reduced to a six month maximum misdemeanor, but also is priorable and can be charged as a felony if there are two prior convictions.

Reduction to Infractions

The following misdemeanor convictions can be reduced to infractions:

  • HSC § 11358 – cultivation of fewer than 6 plants for personal use. This is now an infraction and can be re-classified as such;
  • HSC § 11358 – cultivation of marijuana of more than 6 plants by someone under the age of 18 of more than 6 plants;
  • HSC § 11358 – cultivation of marijuana of more than 6 plants by someone over the age of 18 but under the age of 21.

No Reductions or Dismissal

There will be no reduction or dismissal for someone who had been convicted of a violation of HSC § 11357©, possession of more than 28.5 grams of marijuana.  This offense will still remain a misdemeanor with a maximum sentence of six months in the county jail.

There will a reduction in possible sentence for a conviction of for HSC § 11357 (a), possession of more than 8 grams of concentrated cannabis, from a possible one year in jail, to a possible 6 months in jail.  However, the offense will still remain a misdemeanor.

Consult With An Attorney

The details of Proposition 64 can be complicated and difficult to understand.  It would be best, if you have been convicted of a cannabis offense, or are now facing such an offense, to consult with an experienced drug defense attorney.  I, David Paul Foos, have 35 years’ experience representing the criminally accused, and have been a Judicial Officer with the Sacramento Superior Court for 16 years.  With my experience I will be able to help you navigate through these complicated laws and help you achieve the best possible result in your case.  I look forward to you calling me for a free consultation at (916)779-3500, or contact me through email at This email address is being protected from spambots. You need JavaScript enabled to view it..


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