California Possession of Marijuana FAQs

1. How does the prosecutor determine whether it was possession of marijuana and possession for sales of marijuana?

The prosecution will generally look at the amount of marijuana in possession by the defendant. The prosecution can decide to charge the defendant with possession for sales if the amount in question was significantly large, or if other evidence shows that the defendant had an intent to sell. A few examples of evidence the prosecution considers are how the marijuana was packaged, whether materials were present to pack the marijuana, if large sums of cash were found, or weighing instruments. For more information, please read our Possession for Sale of Marijuana section.

2. What happens if marijuana was found in my car, but it did not belong to me?

You can be found in possession of marijuana even if you were not actually holding or touching it at the time. All that is required is that you at least had control or the right to control it, either personally or through another person. If marijuana was found in your car, you can be considered to have the right to control the marijuana. Therefore, you can still be charged and convicted of possession of marijuana in this situation. This is why it is important to speak with an experienced drug defense attorney when you may be facing a charge for possession of marijuana. A potential defense would be if you did not know the marijuana was in your car.

3. How can I get a DUI from marijuana?

California Vehicle Code Section 23152(a) not only makes it illegal to drive a vehicle while under the influence of an alcoholic beverage, but also prohibits driving while under the influence of drugs. This includes marijuana. The prosecution has a number of ways to prove their case. A few examples are the police officer smelling the marijuana after pulling you over, the police officer seeing the marijuana in your car, your driving pattern, your conduct and appearance, your performance on your field sobriety test (FST), and a chemical test that measures the amount of Tetrahydrocannabinol (THC) in your blood. Even if marijuana was found in your blood system, the prosecutor must prove that it was an amount to impair your ability to drive a car. Mere traces of marijuana in your blood system may not be enough.

4. I have a medical marijuana license. Can the police confiscate my marijuana?

If you are in lawful possession of medical marijuana as a patient under California Health and Safety Code Section 11362.5, then despite federal law, police are obligated to return confiscated marijuana to you pursuant to California Health and Safety Code Sections 11362.5 and 11362.765(b)(1). City of Garden Grove v. Superior Court, 157 Cal. App. 4th 355 (2007).