The Californication of Marijuana laws.
Gideon D. Asche
We all heard it… That deafening sound of “Bics a’ Flicking” and “Bongs o’ Bubbling,” the morning after the election. The Great State of California legalized Marijuana… At least that’s what most Californians believe. The only thing growing faster than the cloud of blue smoke around my neighbor’s house is the confusion about Prop-64.
I Recently had the privilege of engaging Amador County Undersheriff Jim Wenger in casual conversation about California’s cannabis decriminalization. I came away from that conversation smarter than when I started.
Prop-64 did several things, but it didn’t legalize cannabis. Of Prop-64’s 72 pages, there is only one section dealing with decriminalization, but somehow that’s the only part most of us heard. Yes – Personal cannabis use is OK for adults over 21 in California, but that isn’t blanket legalization.
State and local law restrict how much you can have and where you can have it. Cultivation and sale are local issues, no different from restricting tobacco or alcohol sales near schools. Federal Law always applies, and the fact the United States is a signatory to several international treaties demanding Cannabis remain illegal, guarantees federal prohibition will continue. Cannabis use is allowed in California, but it is not legal, and you can be cited or even arrested.
I gleaned a few “Rules of Thumb” from my conversation with the Undersheriff and the resources where he pointed me. I’m going to try to pass some of what I learned on to you. Note: This article is not legal advice – the only legal advice I’m qualified to give is: “Be polite, cooperate, shut up, and call a lawyer.”
Before you light up, take a moment to look around. Cars, firearms, and kids are an automatic NO! If a child is anyplace near, if they can see you, smell your smoke, hear the bubble of your Bong, or even get the impression you are using cannabis – don’t do it. Go someplace else.
Motor vehicles are another automatic NO! Don’t try to be funny by flaunting a bag at the CHP car in the next lane. A baggy of cannabis is an open container, no different from an open beer. A field sobriety test provides a definitive marker used to determine impairment – If you blow .08 you go. With Cannabis, there is no such marker. When an officer determines, cannabis is a factor they rely on experience, training, and observation skills – It’s a judgment call, and it will stand up in court. When it comes to any intoxicant, a firearm is an automatic NO WAY – NO HOW.
Excluding cars, kids and carbines – California allows adults over 21 to possess, process, transport, buy, obtain, or give away to anyone over 21 up to 28.5 grams of cured cannabis and/or up to 8 grams of cannabis concentrate; Cultivate six plants; Smoke cannabis in private; use cannabis products privately and possess Cannabis use paraphernalia. The mistake so easily made is skimming past that part that starts with: “Subject to…” It’s the “subject to” section that explains how the law applies and how it doesn’t apply.
Some important “Subject to” considerations are: Prop-64 doesn’t change, or pre-empt DUI laws, or local codes. California’s decriminalization means nothing to your employer. Prop-64 doesn’t relieve an employer’s duty to maintain a drug and alcohol-free workplace – Your employer may fire you over cannabis use. If you hold a Federal Firearms License (FFL) or a local Concealed Carry Permit (CCW), cannabis use could be used to revoke either. Disabled veterans are regularly denied medical services because they tested positive for THC. Even noncriminal possession could come back to bite you.
In response to the problems that accompany any newly legitimized industry most counties, including Amador, enacted local codes – Prop-64 specifically gives the county this authority. In the pre-Prop 64 days, when the only legal provision for a Californian to possess or use cannabis was under the compassionate use act, Amador County took a strict line on the compassionate use laws prohibiting dispensaries and outdoor medicinal grows.
There was a concern about limited patient access to Medicinal Cannabis with the enhanced controls causing hardship – Misplaced concern in my opinion. I interviewed a dozen legitimate Amador County patients for a past article, and the consensus is there is no access problem. One Disabled Veteran told me that he drives further to get an X-ray than his Medicinal Cannabis.
County regulations recently expanded to outlaw all cultivation other than medicinal grows and Amador county requires medicinal grows to be indoors, locked and discrete. Several other rural counties including some of our neighbors are having serious illegal cultivation problems. Guards with automatic weapons, cartel operations, bobby traps even suspected slave labor have popped up in our general area. It is a simple fact – an industry that has been criminal for decades, won’t legitimize overnight.
It’s easier to set up a fraudulent medicinal grow than a commercial grow and loopholes in the system are conducive to fraudulent grows across multiple counties. The grower can load up their product and drive 12 hours east to a prohibition state and sell it for double what they can in California. While limited, there have been a few instances of booby traps near illicit grows in Amador County but they’ve mostly been non-lethal noisemakers, possibly designed to scare off wildlife as well as human intruders.
Deputies did find an automatic weapon attached to a trip wire and one case where workers, who didn’t know where they were and had no way to leave, were found at an illegal grow operation. They were dropped off to tend the crop and told to hike out to a meeting point once a week for supplies.
Undersheriff Wegner explained that, at least in Amador County, much of that problem is mitigated. Banning large-scale medicinal grows and making it hard for commercial operations forces some of the bad element to go elsewhere. If you come across a grow site the best bet is to exit the area. If it is a legitimate legal grow, you are trespassing. If not, then trespassing is likely the least of your worries. If you are suspicious give the Sheriff a call.
Amador County allows cultivation only under the strictest conditions of the law. If plan on growing for personal or medicinal use, it would be wise to check out Amador County Code § 19.86.050-060 or call code enforcement. Everything from fire safety to how the grow lights affect your neighbor’s sleep needs to be taken into consideration. Proximity to youth oriented facilities, churches, and public view are all things that could get you a citation.
Besides the limits outlined in State law, Amador County Code says, you may not: Publicly smoke or use cannabis products; sell or transfer Cannabis; cultivate, manufacture (concentrates) or chemically test cannabis products, transport cannabis in an open container, or use cannabis as a passenger or operator of a vehicle, watercraft, or aircraft. Amador County prohibits non-medicinal cultivation – PERIOD.
Limited medicinal cultivation is allowed with a 12 plant maximum regardless of the number of patients served. Grows must be indoor and not infringe on anyone. Amador County also requires renters have written permission from the property owner.
In a nutshell, Prop-64 means adults over 21 can use cannabis at home — That’s all you get. It doesn’t sound like prop-64 did much to make cannabis legal, but it wasn’t intended to make it legal. Legal cannabis is probably in our future, but for now all Prop 64 was intended to do is to lift the burden of prosecuting and incarcerating low-level Cannabis offenders.
Changes in the law do not suspend common sense or consideration for your fellow Californians. On the contrary and common sense or consideration for your fellow Californian are the foundation of the new law and observing them will ensure your actions remain within the law.