Many of our clients believe that a marijuana possession charge is the same as being charged while driving. This in fact, is not the case. Marijuana possession (less than one ounce) is made unlawful by California Penal Code §11357(b), however, having marijuana in a person’s possession (less than an ounce) while driving is made illegal by California Vehicle code §23222(b).
Both charges have traditionally been filed as misdemeanors, however, as of January 2011, possession of marijuana under one ounce is now charged as an infraction, whereas VC §23222(b) remains a misdemeanor. Regardless of which section a person is charged under, they will likely be penalized with a fine and possibly community service, unless they have a criminal history. Whether it is charged as a misdemeanor or an infraction will have a significant impact on a person’s criminal record. An infraction is treated similar to a citation, and does not go on a person’s permanent criminal record. A misdemeanor remains on a person’s record until it is properly expunged.
There are several defenses available to a person who has been charged with marijuana possession while driving. If you hold a valid Medical Marijuana Prescription, the charge may be dismissed if the marijuana was properly placed in a legally allowed location in the car and was under the allotted amount.
A person will also not be held liable if they can prove that the marijuana was not theirs. If someone does not have actual or constructive possession of the marijuana, then a person cannot be charged under VC §23222(b). Actual possession is when the marijuana is found on a person, including in their jacket, pocket or purse. Constructive possession is when the drugs are found in an area that is under the control of a person. Areas that a person has constructive possession over include their car, their backpack or their bedroom.
For example, Andy is riding in a car that belongs to Bob. Officers pull over Bob and find marijuana in his trunk and he has no medical marijuana prescription. If Andy is charged for marijuana possession while driving, he will get the charges dismissed because he has the defense that the marijuana was not in his possession.
If the marijuana is found and seized during an illegal search in violation of a person’s fourth amendment rights, then it may not be introduced as evidence. If it is dismissed as evidence, the charge will follow since without proof of marijuana, there is no violation.
Although both charges seem to have minimal penalties, the consequences if has on a person’s criminal record could leave lasting problems. A Los Angeles Criminal Defense attorney will help explain the strength of defenses available and will prepare a defense that will fight to not only reduce the charge to an infraction, but to dismiss it completely!