Selling or Giving Marijuana to a Minor: Health & Safety Code 11361 HS
California’s marijuana laws are designed not only to prevent adults from illegally selling marijuana, but also to prevent adults from exposing minors to the drug itself, or the drug trade associated with marijuana. Under California’s Health and Safety Code 11361 HS, it is a crime for any person over the age of 18 to:
- Hire, employ, or use a minor to unlawfully transport, sell, prepare to sell, or give away marijuana;
- Sell, administer, or offer marijuana to a minor; or
- Induce a minor to use marijuana.1
A Closer Look at Health & Safety Code 11361 HS
This law breaks down into a few broad categories of prohibited actions for which a person over the age of 18 could be charged.
First, it is a crime to involve a minor in any way in the business of marijuana, meaning the unlawful sale, transportation or distribution of the drug. This law covers every step in the process, including tasks such as carrying the drug, preparing it for sale, or promoting the sale of the drug.
Second, it is a crime to provide a minor with marijuana for his or her personal use. This includes selling, offering to sell, or giving a minor the drug. Note, adults can receive more severe punishments for committing any of these acts with a minor under the age of 14.
Finally, Health & Safety Code 11361 HS makes it illegal for a person over the age of 18 to induce a minor to use marijuana. This can be done through encouragement, suggestion, coercion, intimidation, or other means of persuasion.
Prosecution of Health & Safety Code 11361 HS
In order for you to be convicted of selling or giving marijuana to a minor under Health & Safety Code 11361 HS, the prosecution must prove all of the following elements beyond a reasonable doubt:
- You unlawfully:
- sold, or offered to sell, furnish, administer, or give away marijuana;2 The defendant, with intent to commit these acts, offered to sell, furnish, administer, or give away marijuana, a controlled substance, to a person; (Health & Safety Code 11361 HS) 3
- employed, or used a person to transport, carry, sell, give away, prepare for sale, or peddle marijuana, a controlled substance; (Health & Safety Code 11361(a) HS)4
- You knew of the presence of the controlled substance;
- You knew of the substance’s nature or character as a controlled substance;
- At that time, you were 18 years of age or older; AND
- At that time, the person receiving the marijuana was under 18 years of age
- The marijuana was in a usable amount.
For the crime of inducement, the elements are slightly different. In order for you to be convicted of inducement, the prosecution must prove all of the following elements beyond a reasonable doubt:
- You unlawfully encouraged, persuaded, solicited, intimidated/induced) a person to use marijuana;
- At that time, you were at least 18 years of age or older; AND
- At that time, the person induced was under 18 years of age.5
Sentencing & Punishment for Violating Health & Safety Code 11361 HS
Unlike many other California marijuana crimes, all violations of Health & Safety Code 11361 HS are felonies.
If the minor is under the age of 14, then any violation of this law results in three, five, or seven years in state prison.
However, if you gave or offered to give marijuana to a minor who is between the ages of 14 and 17, the sentence will instead be three, four, or five years in state prison.
Possible Defenses to Health & Safety Code 11361 HS
If you have been charged with selling or giving marijuana to a minor under Health & Safety Code 11361 HS, a skilled criminal defense attorney can raise several defenses on your behalf. These defenses may include:
You had no knowledge the substance was marijuana.
One of the requirements for a conviction for selling, offering to sell, or employing a minor for the purpose of being in the marijuana trade is that you actually knew that the substance was present, and that you knew of its nature and character. If the prosecutor is unable to prove that you knew the marijuana was present, or that you knew that it was in fact marijuana, you may not be convicted for a violation of Health & Safety Code 11361 HS
You reasonably believed the minor was an adult.
At the time of the alleged criminal activity, if you had a reasonable belief that the other person was 18 years of age or older (for example if the minor presented you a fake ID that showed they were older than 18), you cannot be convicted of violating Health & Safety Code 11361 HS. Keep in mind, however, that this is not a defense that will totally absolve you of all criminal charges. It could, however, lead to a reduction to a lesser criminal offense, such as a misdemeanor charge.
You did not “unlawfully” involve a minor in marijuana use.
Notice the use of the term “unlawful” in a few of the elements that the prosecution must prove to obtain a conviction. That term means that a few exceptions to the rules regarding marijuana and minors do exist. For example, if the minor has a recommendation for the use of marijuana for treatment of a medical condition, the person who dispenses the drug in accordance with that recommendation may not be charged with violating Health & Safety Code 11361 HS. 6
Frequently Asked Questions on Selling Marijuana to Minors
At Wallin & Klarich, we frequently receive questions from those facing drug related charges. These include:
- What if no money is exchanged? Can I still be charged?
Yes. Like other drug laws in California, this statute is written to include non-monetary exchanges involving marijuana. So, if you were to give marijuana to a minor without asking for any money in return, you can still face a charge of violating this law.
- What if the minor never actually took the drug. Can I still be charged?
Yes. It is illegal for you to offer the drug to a minor even if the individual never takes, buys, or uses the drug.
- Can I be deported for violating Health & Safety Code 11361 HS?
Yes. Like many other statutes that involve the furnishing, administering, or giving (or offering to do so) of a controlled substance to another person, federal law allows a foreign citizen to be deported for violating HS 11361 HS.7
Wallin & Klarich Can Help You Fight Marijuana Charges
If you have been accused of attempting to involve a minor in the use or trade of marijuana, you will need the help of an aggressive and experienced attorney. You need to contact the criminal defense attorneys at Wallin & Klarich as soon as possible. The attorneys at Wallin & Klarich have been defending those facing drug charges for over 40 years. We can help you, too.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is a Wallin & Klarich attorney experienced in California marijuana defense near you, no matter where you work or live.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.
1. See Cal. Health & Saf. Code 11361(a) HS and 11361(b) HS.↩
2. See CALCRIM 2390. Sale, Furnishing, etc., of Marijuana to Minor (Health & Saf. Code, § 11361 HS).
3. See CALCRIM 2391. Offering to Sell, Furnish, etc., Marijuana to Minor (Health & Saf. Code, § 11361 HS).↩
4. See CALCRIM 2392. Employment of Minor to Sell, etc., Marijuana (Health & Saf. Code, § 11361(a) HS).↩
5. See CALCRIM 2393. Inducing Minor to Use Marijuana (Health & Saf. Code, § 11361(a) HS).↩
7. See, Guerrero-Silva v. Holder, 599 F. 3d 1090 (9th Cir. 2010).↩