The Complicated World of Cannabis Law

There are more ways to get in trouble for cannabis cultivation now than there have ever been before.

That may seem like a strange statement. After all, we’re now eight years removed from Prop 64, which legalized cannabis and brought pot shops to suburban strip malls. And in some ways, cannabis is in fact legal. Anyone can possess a bit for fun or to wind down for the night, and if you use cannabis for medical purposes you can use and possess more and buy it with some of the taxes waived. Growing six plants used to be a felony; now it’s legal under state law, and legal in some form or another under most local laws. Penalties are reduced for possession for sale and possession by minors. With the growing acceptance and legality of cannabis use nationwide, it’s little surprise that news outlets have recently been reporting that more Americans regularly use cannabis than regularly use alcohol.

But with legalization and licensing comes new enforcement money and new agencies and departments to enforce and more means of enforcement against noncompliant cultivation. Now, eight years after legalization, cultivation is regularly charged as a felony, and there are several ways that cultivators can be made to take extreme financial hits as well.

The brave new world, a generation later

In 1996, California voters passed the first medical cannabis law in the nation – Proposition 215. At first, Prop 215 created an affirmative defense to cultivation and possession for patients and their caregivers. For example, a person arrested for cultivation could present evidence that a doctor recommended or approved their use of cannabis, and the person couldn’t be convicted unless the jury believed beyond a reasonable doubt that the cannabis grown was not actually for medical purposes. Over time, that defense was expanded to cover more crimes, and to allow collective and cooperative possession or cultivation, where multiple people could grow and possess cannabis together for their combined medical needs. Dispensaries, delivery services, and large scale cannabis farms joined the ranks of collectives, along with smaller backyard gardens with a few people growing together. Criminal law was really the only means of enforcement, and criminal cases, while always felonies, were always defensible as people were regularly holding 99-plant recommendations and presenting evidence of collectives.

Then, in the mid-2010s, things began to shift out of the wild west that they had become. California Supreme Court ruled in a few different decisions that counties and cities could regulate cannabis through administrative zoning laws. In 2015, the legislature passed a series of laws whereby players in the medical cannabis distribution chain had to be licensed and taxed. And in 2016, Prop 64 passed – legalizing adult use and possession of small amounts, allowing for recreational as well as medical licensing similar to what the legislature had recently passed, and reducing penalties for cannabis crimes, with some exceptions (more on that in a bit).

At first, Prop 64 looked like it might be a panacea for cannabis legalization. Those with old felony convictions were successfully moving to have those convictions reduced or vacated. In many places, initial enforcement against cultivation was by warning from a code enforcement officer. But gradually penalties increased; warnings were replaced by cease and desist orders, which were replaced by fines, which in some cases were over a million dollars. The Collective law sunset in 2019, and criminal charges were added on. Environmental agencies like Fish and Game and the Waterboard, the Department Tax and Fee Administration, and the Department of Cannabis Control hired and trained their law enforcement teams. And on top of all that – eight years after Prop 64 and 28 after Prop 215 – many counties are back to filing felony charges on most cultivation.

Enforcement today

While most formerly felony cannabis crimes are now misdemeanors, the exceptions that have largely become the law in some counties. Cultivation that results in certain environmental crimes and violations may still be a felony. The environmental laws were mostly passed in the late 1960s and early 1970s – around the time of the federal passage of the Clean Air Act and a major update to the Clean Water Act – in order to prevent loggers and miners from large scale dumping into rivers. Now prosecutors are using them to make charge felonies, under such theories that fertilizer may end up going into to a dry streambed at some point, or even that any cultivation without a permit or waiver from the Water Board is enough to violate water law and become a felony. Even where cultivation is still charged as a misdemeanor, cultivation where two people act together may be charged as felony conspiracy. Allowing someone to cultivate on your land may be charged as a felony. Charges are not coming only, or even primarily, against the landowners; workers on the land are often subject to these felony charges even if they had nothing to do with setup and are just there to tend the plants. Meanwhile, cities and counties are still fining property owners for cannabis-related code violations – and fines from state environmental and taxation agencies are also common now. Asset forfeiture – seizing of cash, freezing of accounts, and more – is also becoming more commonplace even on relatively small grows.

So – there’s no excuse to not be aware of the legal risks of cannabis cultivation. But medical use and cultivation is still legal on the state level, you just need to be sure to take major precautions. Many of the felony charges and civil forfeiture actions are overcharged cases by overzealous prosecutors.

Sam Berns is one of the top cannabis attorneys in Northern California. He has helped clients own dismissals and significantly reduced charges in criminal cases, the return of substantial sums of money in asset forfeiture cases, and reductions in fines of up to 100 percent in administrative fines cases. If you have any questions about cannabis law, please contact our office to set up a consultation. And if you have learned some of the lessons in the blog post the hard way and are now facing some trouble, give Sam a call.