The Californification of Marijuana laws.
Gideon D. Asche

 

We all heard it… that deafening sound of “Bics a’ Flicking” and “Bongs o’ Bubbling” on Nov 10^th – The Great State of CA voted to legalize Marijuana… at least that’s what most Californians believe, and the only thing growing faster than the cloud of blue smoke around my neighbor’s house is the confusion about Prop-64. The first and most important thing you need to know is: Prop 64 did NOT legalize cannabis. Prop-64 only Decriminalized personal cannabis use for adults over 21 in California, subject to several other provisions of the law. In addition, Federal Law always applies and cannabis remains a Schedule One Controlled Substance. The veracity of the federal prohibition is secured by the fact that the United States is signatory to several international treaties that require that Cannabis remains illegal. Local Law Enforcement doesn’t enforce Federal law.   

I Recently had the privilege of engaging the Amador County Undersheriff Jim Wenger in casual, one on one conversation regarding Cannabis Legalization and what it means. I came away from that conversation considerably smarter than when I started. I’m going to try to impart some of what I learned, to you.  Note: This article should not be considered legal advice of any sort – the only legal advice I’m qualified to give is “Be polite, cooperate, shut up and call a lawyer.”

A CHP associate described it as an “epidemic of foolishness.” People assume that Prop-64 means Cannabis is legal. They try to be funny by lighting up at a stoplight and flaunting it at the CHP car in the next lane –  I assure that will get you a DUI.

DUI is the acronym for “Driving Under the Influence,” and the legality or illegality of the substance doing the influencing is not a factor. Something as benign as Benadryl could get you a DUI. There is little that will get law enforcement’s dander up worse that an impaired driver, but that isn’t the only legal restriction on Cannabis use.

Here are a few “Rules of Thumb” gleaned from my conversation with the undersheriff and the resources he pointed me to. Follow these simple suggestions and you should have no problems with code or law enforcement.

Before you light up, take a moment; look around for red flags.  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 is another automatic NO! Driving while under the influence of cannabis is no different than driving under the influence of any other controlled substance.

A zip-loc full of cannabis is an open container – no different than an open beer. A field test is used establish to a driver’s BAC in CA – If you blow .08 you go. There is no such marker with cannabis, and a regular user will test positive for THC several days after use.

If an officer determines that cannabis is a factor, he’ll use his experience, training, and observation skills to make a judgment call –It’s a judgment call. If he determines you are impaired it will likely stand up in court as a DUI charge.

There is no reason to expound on the firearm issue. The presence of a firearm is an absolute, automatic, NO WAY – NO HOW. That is just common sense, use it.

Once the issue of children, the motorways and firearms are clear, CA State law (H&SC §1362.1) allows adults 21 or older to use, possess, cultivate, and transport and transfer cannabis.

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 does not apply.

Some of the things that Prop-4 didn’t do is change, or preempt any existing  DUI laws. Prop-64 in no way infringes on the obligations of employers to maintain a drug and alcohol free workplace, or fire you for cannabis use.  

If you are employed, you need to consider that CA decriminalization means nothing to your employer. If they has a federal contract, you could be fired, you could lose your security clearance if your job requires one.  Disabled veterans are regularly denied medical services because they tested positive for THC.  Even non-criminal possession could come back to bite you outside the prevue of the State of CA.

Prop-64 doesn’t change the Laws pertaining to the Compassionate Use Act of 1996.

Any adult over the age of 21 may:  possess, process, transport, purchase, obtain, or give away to persons over 21 up to 28.5 grams of cured cannabis and/or up to 8 grams of cannabis concentrate; Cultivate six plants; Smoke cannabis; use cannabis products privately and possess Cannabis use paraphernalia, but this is all “Subject to” other sections in the law.  Most Counties, including Amador have enacted local codes to protect the county from the problems that accompany any newly legitimized industry.

Our foothills and high meadows are a perfect for cannabis cultivation and in the pre Prop 64 days when the only legal provision for an adult to possess or use cannabis was under the compassionate use act, Amador county took a very 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 regulations 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 were recently expanded to prohibit all cultivation other than medicinal grows, and requires medicinal grows 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, can’t just legitimize overnight.

It’s easier to set up a fraudulent medicinal grow than an 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 CA. While very limited, there have been a few  instances of booby traps near illegal grows in Amador County but they have mostly been the non-lethal noise-makers, possible designed to scare of wildlife as well as human intruders.

Deputies did find an automatic weapon attached to a trip wire and one case where workers were found who didn’t know where they were and had no way to leave, They were left to tend the crop and knew to hike out to a meeting point once a week for supplies.  for supplies  

Undersheriff Wegner explained that at least in Amador county, much of that problem has been mitigated. Not allowing large scale medicinal grows and making it hard for commercial operations has had the effect of sending some for the bad element 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.

Under the most recent Prop-64 initiative and county regs, Amador county allows cultivation only under the strictest conditions of the law. Of you are growing for personal or Medicinal use, it would be wise to check out VVVV or call code enforcement.

Considerations need to be made for everything from fire safety to how the odor effects your neighbor, or if your grow lights keep him up at night.  Proximity to Youth orientated facilities, churches and public view are all things that could get you a citation.

Under the final version of Prop-64, the UNIFORM CONTROLLED SUBSTANCES ACT, and related state statutes, any adult over the age of 21 may:  Possess, process, transport, purchase, obtain, or give away to persons 21, up to 28.5 grams of cured cannabis; Possess, process, transport, purchase, obtain, or give away to persons 21 up to 8 grams of cannabis concentrate; Cultivate six plants; Smoke Cannabis;  use Cannabis products privately, Possess Cannabis use paraphernalia. All subject to local county and city ordinances.

That’s pretty much all you get… YOU MAY NOT: Sell Cannabis; smoke or use cannabis products in public; transport cannabis in an open container in the passenger compartment of a vehicle, use cannabis as passenger in a vehicle, watercraft, or aircraft.

Many counties prohibit any non-medicinal grows and require medicinal grows be indoors and discrete. If you cultivate the best rule of thumb is “keep it secret keep it locked.”