Beginning with the passage of Proposition 215 by California voters in 1996 (aka “The Compassionate Use Act” which legalized marijuana use to those who used it for medicinal purposes to treat serious by allowing primary caregivers and certain patients who are very ill to possess marijuana) to the Justice Department’s new stance to no longer target marijuana dispensaries operating legally within state law, the issue of marijuana use seems to be reaching much broader acceptance across the United States. However, the same cannot be said for the cultivation of marijuana.
In California, it is a felony to grow or cultivate marijuana. Health and Safety Code 11358 states “[e]very person who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, except as otherwise provided by law, shall be punished by imprisonment in the state prison.” A person charged under this statute faces a potential sentence of 3 years in state prison.
The biggest concern with marijuana cultivation is that the individual is growing it with the intent to sell it. Often times, in addition to charging a person with marijuana cultivation, prosecutors will charge the individual with possession of marijuana with the intent to sell. On the other side of the coin, the defense will argue that the person was cultivating for personal use. This is an important distinction as the penalties involved with sales are substantially greater. That said, there are a number of factors that can distinguish whether cultivation of marijuana will be viewed as for personal use or for sales.
- the number of plants …the more plants the more likely it will be perceived as sales
- how much of the plant(s) is actually usable or sellable marijuana bud (usually less than 10% of the total plant weight),
- the suspect’s normal level of marijuana use
- any financial records to explain any money or assets
- the presence of other indicia of marijuana sales such as packaging materials, scales, pay-owe sheets, large sums of cash, etc.
Ultimately, whatever the facts of your particular case may be or how aggressively the prosecutor goes after a cultivation case, an experienced California marijuana defense lawyer can effectively put forth a number of defenses on your behalf. Some of the more common defenses to marijuana cultivations cases are as follows:
- Prop. 215 defense – authorized cultivation for use as medicinal uses
- Illegal search and seizure by the police resulting in the exclusion of evidence
- Attack the validity of the search warrant
- Persuading prosecutor and/or jury that growing the marijuana was for personal use not for sales
- insufficient evidence of possession and/or sales – lack of connection between suspect and plants or sales activity.
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