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Is it OK to smoke marijuana in California? Not exactly

By David A. Linn, Madera County district attorney

On Nov. 8, Prop. 64 was approved by California voters. This proposition was designed to legalize the recreational use of marijuana in the State of California. This legalization is not without current restrictions and future controls and laws that may affect how and where it is used.

Smoking marijuana is legal in California, but not in public places. Public places under California law includes any property that is open to the general public or any legal business. It should also be noted that marijuana cannot be used where tobacco products have been previously prohibited. This prohibition would include such places as schools and restaurants. Smoking marijuana while driving a vehicle is also prohibited.

You can only smoke marijuana if you are older than 21; you also must be 21 to transport, possess, or purchase recreational marijuana. The amount of marijuana that you may possess is less than 1 ounce. Marijuana cannot be sold at any location where alcohol or tobacco products are sold and can only be sold at a licensed dispensary.

Driving under the influence of marijuana, like driving under the influence of alcohol, can still result in misdemeanor and/or felony prosecution.

Admittedly marijuana intoxication will be harder to prove than alcohol intoxication.

Law enforcement has long been aware that recreational marijuana would eventually be legalized in this state. In preparation for this legalization they have been taking training courses, consulting with other law enforcement entities and prosecutors and preparing a protocol on how to handle individuals intoxicated with marijuana while driving. I have recently had meetings with the California Highway Patrol and discussions with prosecutors as to how marijuana intoxication will be handled by the Madera County District Attorney’s Office. Although the prosecution will take more time and be more extensive, I, along with my prosecutors, believe that we should fully prosecute driving while under the influence of marijuana.

Smoking marijuana while driving is clearly against the law and driving while intoxicated with marijuana can result in fines and/or imprisonment.

I have always believed from my prior experience as a private attorney, that a drunk driving conviction, which is essentially the same as driving while under the influence of marijuana costs defendants approximately $10,000 in attorney fees, costs and insurance increases. This amount will only go up with marijuana as the intoxicating substance.

In a recent study, it has been determined that potential employers consider individuals convicted of marijuana intoxication as less desirable employees than similarly convicted alcohol intoxicated people.

It should be noted that it is still illegal to possess or consume marijuana under federal law. This federal prohibition should have a negative impact on your travel plans to Yosemite and your desires of a future in the military or a federal government position.

Recreational marijuana can be grown under Proposition 64; however counties such as Madera are currently evaluating their marijuana production and sale code enactments and the public should be ready for new cultivation rules within the next two weeks.

Studies are now appearing that are indicating that consistent marijuana use may have long term medical effects and there is very little doubt within the legal and medical communities that it is a gateway drug, which opens the door to serious drug use and abuse.

Recreational marijuana, as with any law passed by proposition, will have significant and numerous restrictions placed upon it. I firmly believe that the passage of Proposition 64 will prove to be extremely detrimental to the average citizens of California and to the people who choose to use it in general.


David A. Linn, Madera County district attorney, was elected DA in 2014. Prior to that, Mr. Linn was a private practice attorney for thirty-eight years. Linn’s cases have been published five times.


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