35+ Years Criminal Defense Experience in California


California Possession of Marijuana Defenses

Possession of Marijuana Defenses – California Health and Safety Code Section 11357

Medical Marijuana

In California under certain circumstances, it is legal to possess marijuana for medical purposes. In 1996, California voters passed the Compassionate Use Act which made it legal to cultivate and possess marijuana for medical purposes. The Compassionate Use Act authorizes the distribution of medicinal marijuana to those who are terminally ill.

Every county and city has its own specific rules to regulate the flow of marijuana as defined in the Compassionate Use Act. Thus, it is very important to consult an experienced marijuana defense attorney if you or a loved one has been accused of marijuana possession.

Possession of marijuana is still illegal under federal law. The good news is that the current Obama administration in Washington has taken a view more “enlightened” than under the Bush years in Washington. What this means is that it is unlikely that federal law enforcement will arrest you for a marijuana offense if you are complying with state laws. Knowing the law does not make you immune from prosecution, but it helps tremendously when it comes to your defense.

Momentary Possession

defenses to possession of marijuana charges
There are several possible defenses that a skilled criminal defense attorney will be able to raise on your behalf.

Possession is not illegal if the defendant can prove the defense of momentary possession. In order to establish this defense, the defendant must prove that:

  1. The defendant possessed the controlled substance only for a momentary or transitory period;
  2. The defendant possessed the controlled substance in order to abandon, dispose of, or destroy it; AND
  3. The defendant did not intend to prevent law enforcement officials from obtaining the controlled substance.


The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the three listed items is true.

No Control Over Illegal Substance

The defendant cannot be charged with possession of a controlled substance if the defendant did not have control over the illegal substance.

However, the prosecution can satisfy this burden by proving that the substances were in a vehicle or home that belongs to you. Even if you did not personally buy the substances, or were not using the substances, the prosecution can still charge you with felony possession.

Agreeing to buy marijuana does not, by itself, mean that a person has control over the substance.

Awareness or Knowledge of Controlled Substance

The defendant cannot be charged with possession of a controlled substance if the defendant was not aware of the substance’s presence and that it was a controlled substance.

Call Wallin & Klarich Today

If you or a loved one have been charged with Possession of Marijuana, call Wallin and Klarich today at (877) 466-5245. We will get through this together.

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