Concentrated Cannabis in California

Concentrated Cannabis goes by many names – hash and wax are just two of the most common. It is legal to possess concentrated cannabis in California under certain conditions – namely, when the individual has a valid marijuana recommendation (prescription) provided by a licensed physician.

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Otherwise, unlawful possession of concentrated cannabis is a crime which can result in misdemeanor or felony charges.

Marijuana is defined as all parts of the plant: seeds, resin, compounds, salt, derivatives, mixtures, or a preparation of any part of the plant, whether growing or not. Concentrated cannabis is the separated resin—crude or purified—from the plant. Basically, the goal of producing a resin is to separate the plant matter from the active ingredients it contains. This resin contains the psychoactive chemical tetrahydrocannabinol (THC) and is referred to by many names including hash, wax, hash oil, 710 (oil flipped and spelled backwards), shatter, honey oil, and many other slang terms.

The resin is commonly extracted by using solvents such as butane and other volatile chemicals which create a significant public danger. In fact, California hospitals have reported a steady rise in severe burn cases as a result of butane hash oil explosions.

Cal. Health & Safety Code Sections 11357 through 11362.9 define all marijuana offenses in California. Proposition 47—passed in November 2014—reduced simple possession of concentrated cannabis to a misdemeanor, while possession for sale, unlawful production, sale, or transportation is a felony.

Elements of the crime of possession of concentrated cannabis

In order for a prosecutor to successfully convict on a concentrated cannabis charge under California law, all of the following elements must be proved:

1. The defendant unlawfully possessed the controlled substance.

2. The defendant knew of its presence.

3. The defendant knew that the substance was a controlled substance.

4. The controlled substance was concentrated cannabis.

5. The controlled substance was in a usable amount.

For purposes of the law, there are two kinds of possession:

• Actual possession means that the defendant had actual and/or exclusive control over the substance.

• Constructive possession means that the defendant did not necessarily touch or hold the substance. For example, a married couple who had concentrated cannabis in a bedroom dresser drawer of their shared home is said to have constructive possession of the substance.

With respect to the usable amount element, any amount of concentrated cannabis is considered usable and is, therefore, illegal to possess.

Criminal penalties for concentrated cannabis

Specific penalties depend on the circumstances of each case, the defendant’s criminal history, and the severity of the offense. Even if charged as a misdemeanor, penalties for unlawful possession of concentrated cannabis are still rather stiff. For misdemeanor charges, the defendant can be sentenced up to one year in jail and/or up to three years of summary probation, with or without additional fines and fees as determined by the court.

For felony charges, Health & Safety Code Section 11379.6 states that “the manufacture of a controlled substance by chemical extraction is punishable by imprisonment of up to seven years and a fine of up to $50,000,” as well as up to five years of probation. Increased criminal penalties apply for manufacturing any concentrated marijuana products with the use of a volatile solvent within 300 feet of a residential building or other occupied structure.

Diversion

Non-violent first- or second-time offenders may be eligible for a deferred judgement and Proposition 36 diversionary drug treatment requirement instead of jail time, but only for simple possession or cultivation for personal use. Once treatment is successfully completed—along with any other court-imposed conditions such as probation or fines—then the charges will be dismissed.

Legal defenses for a concentrated cannabis charge

Only a qualified attorney can provide appropriate legal advice for an accused person’s unique situation. However, there are several possible legal defenses to concentrated cannabis possession charges. These include:

• Possession of a legal prescription for medical marijuana.

• The substance in question belonged to someone else.

• The accused had no knowledge that the drug was there and/or that it was concentrated cannabis.

• The defendant is a primary caregiver for a legitimate medical marijuana patient.

• The drug was found during an illegal search and seizure.

It is important to understand that possession of a valid medical marijuana card permits legal possession of medical marijuana under California law, but not federal law.

There are also possible defenses to charges of unlawful sale, transport, possession with the intent to sell, or importing concentrated cannabis. These include:

• The product was for personal use.

• Insufficient evidence of intent to sell.

• Insufficient evidence of an actual sale.

• Police entrapment or other misconduct.