Prop 64 - Revision history

Sysop: /* Saliva test */

2017-05-11T17:27:01Z

Saliva test

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	====Saliva test====		====Saliva test====
	Stanford has developed a saliva-based machine to detect the presence of THC. [https://www.engadget.com/2016/09/13/stanford-roadside-weed-breathalyzer/]		Stanford has developed a saliva-based machine to detect the presence of THC. [https://www.engadget.com/2016/09/13/stanford-roadside-weed-breathalyzer/]

			One saliva-based machine is called the Alere DDS2. Several policies agencies in California are already using it. [http://www.sacbee.com/news/politics-government/capitol-alert/article149848499.html]

	====Breath test====		====Breath test====

Sysop at 03:51, 11 March 2017

2017-03-11T03:51:36Z

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	*Possessing marijuana on schools grounds while children are present		*Possessing marijuana on schools grounds while children are present
	*Using marijuana within 1,000 feet of a school while children are present		*Using marijuana within 1,000 feet of a school while children are present
	*~~Using marijuana while driving or riding in a vehicle~~		*
	*Having an open container of marijuana while in a vehicle, whether driver or passenger		*Having an open container of marijuana while in a vehicle, whether driver or passenger
	*Making hash oil/BHO without a license under HSC11379.6/HSC11362.3(a)(6)		*Making hash oil/BHO without a license under HSC11379.6/HSC11362.3(a)(6)
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	==What may or may not be legal==		==What may or may not be legal==
	*Driving with less than an ounce of marijuana in the car. Prop 64 does not amend or repeal VC23222(b), but HSC11362.1(a) makes transportation of less than an ounce of marijuana legal.		*Driving with less than an ounce of marijuana in the car. Prop 64 does not amend or repeal VC23222(b), but HSC11362.1(a) makes transportation of less than an ounce of marijuana legal.
			*Using marijuana while driving or riding in a vehicle. This is explicitly prohibited by HSC11362.3(a)(7) and (a)(8) but I can find no penalty provision.

	==Trial issues==		==Trial issues==

Sysop: /* Excluding prior convictions */

2017-01-25T20:54:40Z

Excluding prior convictions

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	==Excluding prior convictions==		==Excluding prior convictions==
	Many offenses that are misdemeanors under Prop 64 are felonies or wobblers if the defendant has one of the following offenses. ~~An excluding prior~~ conviction is one that ~~is prior to~~ the Prop 64 ~~petition or application;~~ it need ~~not~~ be prior to the ~~conviction~~ for ~~which reduction is sought~~. (''People v. Montgomery'' (2016) 247 Cal.App.4th 1179, rev. den. Sept. 22, 2016, S235775; ''People v. Zamarripa'' (2016) 247 Cal.App.4th 1179, rev. den. Sept. 21, 2016, S235810.)		Many current offenses that are misdemeanors under Prop 64 are felonies or wobblers if the defendant has one of the following offenses. It is currently unsettled if one of the following offenses will prevent a person from seeking a post-conviction reduction or resentencing. Under Prop 47, the resentencing and redesignation statute, PC1170.18, specifically said in subdivision (i), that a super-strike or sex offender registration prevented one from getting relief under PC1170.18. The resentencing and redesignation statute for Prop 64, HSC11361.8, has no such language. However, since the amended crimes (HSC11358, HSC11359, HSC11360) state that it may be a felony if the defendant has a super-strike or a sex offender registerable offense, a prosecutor could argue that such convictions disqualify one from Prop 64 relief.

			There is also a question of when does it have to be prior. Under Prop 47, the prior conviction need only be prior to the application or petition for Prop 47 relief. (''People v. Montgomery'' (2016) 247 Cal.App.4th 1179, rev. den. Sept. 22, 2016, S235775; ''People v. Zamarripa'' (2016) 247 Cal.App.4th 1179, rev. den. Sept. 21, 2016, S235810.) It is unknown for Prop 64 what the prior conviction needs to be prior to.

	{\| class="wikitable"		{\| class="wikitable"

Sysop: /* Health and Safety Code section 11360 summary */

2016-12-15T00:43:35Z

Health and Safety Code section 11360 summary

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	After Prop 64, under HSC11360(a)(2), unlawful transportation for sales, importation, sales, furnishing, administering, giving away, or offers, or attempts to do any of the previous of more than 28.g of marijuana is a six-month misdemeanor, with exceptions. The exceptions are a prior super-strike conviction, PC290(c) registration, two or more prior HSC11360(a)(2) convictions, sales to someone under the age of 18, or importing or selling across state lines of more than 28.5g of marijuana or more than 4g of concentrated cannabis. If an exception applies, it's a 2-3-4 county jail felony.		After Prop 64, under HSC11360(a)(2), unlawful transportation for sales, importation, sales, furnishing, administering, giving away, or offers, or attempts to do any of the previous of more than 28.g of marijuana is a six-month misdemeanor, with exceptions. The exceptions are a prior super-strike conviction, PC290(c) registration, two or more prior HSC11360(a)(2) convictions, sales to someone under the age of 18, or importing or selling across state lines of more than 28.5g of marijuana or more than 4g of concentrated cannabis. If an exception applies, it's a 2-3-4 county jail felony.

			====Text of Health and Safety Code section 11360 after Realignment under AB109====
			(a) Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of two, three or four years.

			(b) Except as authorized by law, every person who gives away, offers to give away, transports, offers to transport, or attempts to transport not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100). In any case in which a person is arrested for a violation of this subdivision and does not demand to be taken before a magistrate, such person shall be released by the arresting officer upon presentation of satisfactory evidence of identity and giving his written promise to appear in court, as provided in Section 853.6 of the Penal Code, and shall not be subjected to booking.

Sysop: /* Text of Health and Safety Code section 11358 after Prop 64 */

2016-12-14T22:11:40Z

Text of Health and Safety Code section 11358 after Prop 64

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	::(D) violation of Section 1602 of the Fish and Game Code relating to rivers, streams and lakes;		::(D) violation of Section 1602 of the Fish and Game Code relating to rivers, streams and lakes;
	::(E) violation of Section 3 7 4. 8 of the Penal Code relating to hazardous substances or Sections 25189.5, 25189.6, or 25189. 7 of the Health and Safety Code relating to hazardous waste;		::(E) violation of Section 3 7 4. 8 of the Penal Code relating to hazardous substances or Sections 25189.5, 25189.6, or 25189. 7 of the Health and Safety Code relating to hazardous waste;
	::(F) violation of Section 2080 of the Fish and Game Code relating to endangered and threatened species or Section 3513 of the Fish and Game Code relating to the Migratory Bird Treaty Act; or :		::(F) violation of Section 2080 of the Fish and Game Code relating to endangered and threatened species or Section 3513 of the Fish and Game Code relating to the Migratory Bird Treaty Act; or
	::(G) intentionally or with gross negligence causing substantial environmental harm to public lands or other public resources.		::(G) intentionally or with gross negligence causing substantial environmental harm to public lands or other public resources.

Sysop at 17:06, 22 November 2016

2016-11-22T17:06:40Z

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	Per HSC11361.8(h), a reduction to a misdemeanor under Prop 64 would be considered a misdemeanor for all purposes. There is no exception for firearms as in Prop 47. Given this "all purposes" language without restriction, and how it mirrors PC17(b), this would indicate a restoration of firearm rights if one has been disenfranchised by being a convicted felon. (See ''People v. Culbert'' (2013) 218 Cal.App.4th 184; ''People v. Gilbreth'' (2007) 156 Cal.App.4th 53; ''Gebremicael v. California Com'n on Teacher Credentialing'' (2004) 118 Cal.App.4th 1477.)		Per HSC11361.8(h), a reduction to a misdemeanor under Prop 64 would be considered a misdemeanor for all purposes. There is no exception for firearms as in Prop 47. Given this "all purposes" language without restriction, and how it mirrors PC17(b), this would indicate a restoration of firearm rights if one has been disenfranchised by being a convicted felon. (See ''People v. Culbert'' (2013) 218 Cal.App.4th 184; ''People v. Gilbreth'' (2007) 156 Cal.App.4th 53; ''Gebremicael v. California Com'n on Teacher Credentialing'' (2004) 118 Cal.App.4th 1477.)

	However, federal law under 18 U.S.C. 922(g)(3) prohibits unlawful users or addicts of controlled substances from having firearms. Marijuana is still a Schedule I controlled substance under 21 USC 812 and 21 CFR 1308.11. ATF has issued an [https://www.atf.gov/file/60211/download Open Letter] to gun dealers that even if marijuana usage is legal under state law, it is still illegal under federal law and a user of marijuana would be considered an unlawful user of a controlled substance and prohibited from having firearms under 18 U.S.C. 922(g)(3). Under 27 CFR 478.11, "a conviction for use or possession of a controlled substance within the past year" infers current use of a controlled substance. The 9th Circuit in ''Wilson v. Lynch'' (9th Cir. 2016~~, No. 14-15700~~), available at [http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/31/14-15700.pdf] held that the ATF's interpretation of the law under the Open Letter was constitutional under the Second Amendment and the Fifth Amendment.		However, federal law under 18 U.S.C. 922(g)(3) prohibits unlawful users or addicts of controlled substances from having firearms. Marijuana is still a Schedule I controlled substance under 21 USC 812 and 21 CFR 1308.11. ATF has issued an [https://www.atf.gov/file/60211/download Open Letter] to gun dealers that even if marijuana usage is legal under state law, it is still illegal under federal law and a user of marijuana would be considered an unlawful user of a controlled substance and prohibited from having firearms under 18 U.S.C. 922(g)(3). Under 27 CFR 478.11, "a conviction for use or possession of a controlled substance within the past year" infers current use of a controlled substance. The 9th Circuit in ''Wilson v. Lynch'', 835 F.3d 1083 (9th Cir. 2016), available at [http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/31/14-15700.pdf] held that the ATF's interpretation of the law under the Open Letter was constitutional under the Second Amendment and the Fifth Amendment.

	As of January 16, 2017, ATF altered Form 4473, which is the federal form filled out when purchasing a firearm. Form 4473 asks a number of question, to determine if one is prohibited from possessing firearms. Question 11.e has been changed to the following:		As of January 16, 2017, ATF altered Form 4473, which is the federal form filled out when purchasing a firearm. Form 4473 asks a number of question, to determine if one is prohibited from possessing firearms. Question 11.e has been changed to the following:

Sysop: /* Firearm rights */

2016-11-17T17:19:47Z

Firearm rights

← Older revision		Revision as of 17:19, 17 November 2016
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	However, federal law under 18 U.S.C. 922(g)(3) prohibits unlawful users or addicts of controlled substances from having firearms. Marijuana is still a Schedule I controlled substance under 21 USC 812 and 21 CFR 1308.11. ATF has issued an [https://www.atf.gov/file/60211/download Open Letter] to gun dealers that even if marijuana usage is legal under state law, it is still illegal under federal law and a user of marijuana would be considered an unlawful user of a controlled substance and prohibited from having firearms under 18 U.S.C. 922(g)(3). Under 27 CFR 478.11, "a conviction for use or possession of a controlled substance within the past year" infers current use of a controlled substance. The 9th Circuit in ''Wilson v. Lynch'' (9th Cir. 2016, No. 14-15700), available at [http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/31/14-15700.pdf] held that the ATF's interpretation of the law under the Open Letter was constitutional under the Second Amendment and the Fifth Amendment.		However, federal law under 18 U.S.C. 922(g)(3) prohibits unlawful users or addicts of controlled substances from having firearms. Marijuana is still a Schedule I controlled substance under 21 USC 812 and 21 CFR 1308.11. ATF has issued an [https://www.atf.gov/file/60211/download Open Letter] to gun dealers that even if marijuana usage is legal under state law, it is still illegal under federal law and a user of marijuana would be considered an unlawful user of a controlled substance and prohibited from having firearms under 18 U.S.C. 922(g)(3). Under 27 CFR 478.11, "a conviction for use or possession of a controlled substance within the past year" infers current use of a controlled substance. The 9th Circuit in ''Wilson v. Lynch'' (9th Cir. 2016, No. 14-15700), available at [http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/31/14-15700.pdf] held that the ATF's interpretation of the law under the Open Letter was constitutional under the Second Amendment and the Fifth Amendment.

			As of January 16, 2017, ATF altered Form 4473, which is the federal form filled out when purchasing a firearm. Form 4473 asks a number of question, to determine if one is prohibited from possessing firearms. Question 11.e has been changed to the following:
			<blockquote>e. Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?</blockquote>
			<blockquote>Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.</blockquote>

	===Forms===		===Forms===

Sysop: /* Secondary sources */

2016-11-16T21:32:02Z

Secondary sources

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	* [http://www.courts.ca.gov/documents/prop64-Memo-20161110.pdf Couzens and Bigelow on Prop 64]. Judges will undoubtedly rely on this document in deciding Prop 64 cases.		* [http://www.courts.ca.gov/documents/prop64-Memo-20161110.pdf Couzens and Bigelow on Prop 64]. Judges will undoubtedly rely on this document in deciding Prop 64 cases.
	*[https://www.ilrc.org/sites/default/files/resources/report_prop64_final.pdf ILRC report on impact of Prop 64 on immigration]		*[https://www.ilrc.org/sites/default/files/resources/report_prop64_final.pdf ILRC report on impact of Prop 64 on immigration]
			*[[Media:Criminal_Penalties_of_Prop_64.pdf\|Drug Policy Alliance's Criminal Penalties of Prop 64 chart. It is also used in the Couzens and Bigelow document.]]
			*[[Media:Prop._64_Memo_to_Criminal_Defense_Attorneys.pdf\|Drug Policy Alliance's Prop 64 Memo to Criminal Defense Attorneys]]

	==Affected crimes==		==Affected crimes==

Sysop: /* The Prop 64 Cheat Sheet */

2016-11-16T21:30:54Z

The Prop 64 Cheat Sheet

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	[[Media:Prop64CheatSheet_v1.3.docx\|Prop 64 Cheat Sheet v1.3.]] Updated November 14, 2016.		[[Media:Prop64CheatSheet_v1.3.docx\|Prop 64 Cheat Sheet v1.3.]] Updated November 14, 2016.

	Also valuable are two following documents from the Drug Policy Alliance:		Also valuable are two following documents from the Drug Policy Alliance, provided here with their permission:

	*[[Media:Criminal_Penalties_of_Prop_64.pdf\|Criminal Penalties of Prop 64 chart]]		*[[Media:Criminal_Penalties_of_Prop_64.pdf\|Criminal Penalties of Prop 64 chart]]

Sysop: /* Trial issues */

2016-11-16T21:28:45Z

Trial issues

← Older revision		Revision as of 21:28, 16 November 2016
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	However, this does not mean that you can successfully run a 1538.5 on every single search and seizure involving marijuana. There is still lots of marijuana-related activity that is still illegal under Prop 64. For example, using marijuana in the car either as a driver or as a passenger is an infraction. So if an officer smells a whiff of marijuana in the car, that's probable cause to arrest. Furthermore, an officer could have probable cause to search the car under the automobile exception to determine the total amount of marijuana in the car. (See ''People v. Waxler'' (2014) 224 Cal.App.4th 712; ''People v. Strasburg'' (2007) 148 Cal.App.4th 1052.)		However, this does not mean that you can successfully run a 1538.5 on every single search and seizure involving marijuana. There is still lots of marijuana-related activity that is still illegal under Prop 64. For example, using marijuana in the car either as a driver or as a passenger is an infraction. So if an officer smells a whiff of marijuana in the car, that's probable cause to arrest. Furthermore, an officer could have probable cause to search the car under the automobile exception to determine the total amount of marijuana in the car. (See ''People v. Waxler'' (2014) 224 Cal.App.4th 712; ''People v. Strasburg'' (2007) 148 Cal.App.4th 1052.)

	Second, under 1982's Prop 8 and ''In re Lance W.'' (1985) 37 Cal.3d 873, a 1538.5 only excludes violations of the US Constitution's Fourth Amendment. Violation of the California Constitution's Article I, section 13, or of state statutes such as Prop 64 cannot be suppressed under PC1538.5 because of Prop 8. As an example, Penal Code 836(a)(1) says an officer may only make a warrantless arrest for a misdemeanor if it was committed in the officer's presence. So if an officer makes an arrest for a misdemeanor that was not observed directly, is that suppressible under PC1538.5? Reasonable minds, citing the same opinion, ''Atwater v. City of Lago Vista'' (2001) 532 U.S. 318, can differ as to whether that's a violation of the Fourth Amendment or just a state statute, and therefore suppressible or not under PC1538.5.		Second, under 1982's Prop 8 and ''In re Lance W.'' (1985) 37 Cal.3d 873, a 1538.5 only excludes violations of the US Constitution's Fourth Amendment. Violation of the California Constitution's Article I, section 13, or of state statutes such as Prop 64 cannot be suppressed under PC1538.5 because of Prop 8. As an example, Penal Code 836(a)(1) says an officer may only make a warrantless arrest for a misdemeanor if it was committed in the officer's presence. So if an officer makes an arrest for a misdemeanor that was not observed directly, is that suppressible under PC1538.5? Reasonable minds, citing the same opinion, ''Atwater v. City of Lago Vista'' (2001) 532 U.S. 318, can differ as to whether that's a violation of the Fourth Amendment or just a state statute, and therefore suppressible or not under PC1538.5. So is search or seizure related to marijuana a violation of the Fourth Amendment or just a violation of a state statute?

	===Testing for consumption of marijuana===		===Testing for consumption of marijuana===