Proposition 64 is a ballot measure that passed on November 9th, 2016. This measure made it legal for an individual 21 and over to possess up to an ounce of marijuana. The possession could be for either personal or recreational use. The proposition also made it possible for businesses to apply for a license to tax marijuana.
The problem is for now it is legal to possess marijuana for recreational use but there is no legal way to buy it. Dispensaries or “collectives” are only allowed to sell to someone who has a valid medical marijuana card. This creates an issue. The reason is because now it forces individuals to buy the marijuana from someone who is selling it on the street. When making this law, one would not have assumed that this was the goal. The legislature and city government should consider moving quickly on this issue and allowing stores to sell Marijuana sooner than later.
Retroactivity of Proposition 64
We have been repeatedly asked about whether or not this new law will be retroactive. What that means is, if you had a previous conviction, will you be able to now apply this new law? The answer is yes. But the reasoning is not as clear as one may think. The reason why proposition 64 applies retroactively is because someone cannot be convicted of a crime that does not even exist. What this proposition did was get rid of certain crimes from the health and safety code (the penal code). So what now happened is people now have a conviction on their record for a penal code that is no longer even in the system. That is impossible, and therefore if someone applies to have their conviction vacated, there is a good chance that it will be.
Which cases can be reduced or dismissed under proposition 64?
The following six penal codes are ones that can be changed under the law. This list is non-exhaustive and other crimes may be included. However, this is a good reference point to get started. If you have been convicted of any of these codes then you should call a criminal lawyer in San Diego to have your case reduced or dismissed.
- HS 11357 (Possession of Marijuana) – This is just simple possession of Marijuana of less than 28.5 grams. This crime was formerly an infraction under the old law. After proposition 64 passed, this crime no longer exists. If you have been convicted of this crime, then your conviction can be vacated and your case will be dismissed.
- HS 11357 (Possession of Controlled Cannabis) – This code is the same as possession of Marijuana was also written as possession of controlled cannabis. This most commonly means hash oil or other types of solid hash. Much like above, after proposition 64 passed, this is now legal. Before proposition 64 this was a misdemeanor. If you were convicted of this before proposition 64 then your case should now be dismissed.
- HS 11358 (Cultivation – up to 6 plants) – Before the new laws had passed, this crime was actually a felony. A felony is a serious offense and it means thousands of additional dollars in penalties and usually a probation officer personally assigned to your case. After November 9th, 2016, this is no longer a crime. If you cultivated 6 plants, were over the age of 21 and were convicted, then this should be dismissed. If you were under the age of 21 then this should be reduced to an infraction. If you cultivated more than 6 plants then the felony should be reduced to a misdemeanor.
- HS 11359 (Possession of Marijuana for Sale) – Prior to the law changing possession of marijuana for sale was a felony. Again, it was seen as a felony because of the idea of a sale being committed. After proposition 64 passed, in most cases, this is now a misdemeanor. By most cases we mean that as long as the conviction was a first or second offense then the conviction should be reduced to a misdemeanor.
- HS 11360 (Transport of Marijuana) – Much like possession for sale, the transport charge was also a felony. If you have been convicted of this count, it can be reduced from a felony to a misdemeanor as well.
How does the process work for dismissal in San Diego with Proposition 64?
Now we have covered what cases can be reduced or dismissed. The question still remains though of how this actually occurs. San Diego has created a system where attorneys can file the paperwork with the court. According to the clerk, the turn-around right now should be around 4 weeks. If you are looking to take advantage of this, you should certainly do it as soon as possible. In 2015 when proposition 47 passed, right after it passed the turn-around was a month to two months. About 6 months later the turn-around changed from 1-2 years. The more time that passes the more the court gets clogged up with these convictions.
If you have been convicted of a marijuana related offense, give Ozols Law Firm a call to see if you qualify for a reduction or a dismissal.