Proposition 64: The Adult Use of Marijuana Act

Proposition 64 eliminates the criminal consequences for personal level possession and cultivation of marijuana by persons 21 years of age or older. Subject to certain exceptions, it allows persons 21 or older to:

• possess, process, transport, purchase, obtain, or give away to persons 21 years old or older without compensation 28.5 grams or less of marijuana and 8 grams or less of concentrated cannabis;
• possess, plant, cultivate, harvest, dry, or process six or fewer living marijuana plants and products produced by the plants;
• smoke or ingest marijuana and marijuana products; and
• possess, transport, purchase, obtain, use, manufacture, or give away without compensation to persons 21 or older, any marijuana accessories.

Proposition 64 reduces the punishment for many marijuana-related offenses. For a detailed list of changes to criminal penalties under the Act, see Appendix I to PROPOSITION 64: “Adult Use of Marijuana Act” Resentencing Procedures and Other Selected Provisions, by Judge Richard Couzens, Superior Court of Placer County (Ret.), and Presiding Justice Tricia A. Bigelow, Court of Appeal, Proposition 64 reduces the punishment for many marijuana-related offenses. For a detailed list of changes to criminal penalties under the Act, see Appendix I to PROPOSITION 64: “Adult Use of Marijuana Act” Resentencing Procedures and Other Selected Provisions , by Judge Richard Couzens, Superior Court of Placer County (Ret.), and Presiding Justice Tricia A. Bigelow, Court of Appeal, Second Appellate District, Division Eight. Appendix I is a chart prepared by the Drug Policy Alliance and has been reprinted with their permission. Second Appellate District, Division Eight. Appendix I is a chart prepared by the Drug Policy Alliance and has been reprinted with their permission.

While much of the media coverage of Proposition 64 focused on its impacts on adults, it also substantially impacts the handling of marijuana related offenses for juveniles.

Juvenile marijuana offenses all classified as infractions

Proposition 64 does not decriminalize marijuana related offenses for minors, but it does amend existing statutes to provide that most marijuana related offenses for minors are infractions (Manufacture of concentrated cannabis under Health and Safety Code section 11379.6 remains a felony, and penalties for offenses related to driving under the influence are also unchanged by Prop. 64). In addition, it specifies the penalties that can be imposed by the courts for these infractions and they are limited to at least four hours of drug education or counseling and some amount of community service, and these are the only sanctions that can be applied to a minor found to have committed a marijuana related offense.

The number of hours of drug education and counseling and community service required or authorized by Proposition 64 varies based on the nature of the offense and whether it is a first offense or a subsequent offense. These pairings range from four hours of drug education and up to 10 hours of community service for a first-time possession of less than 28.5 grams to 10 hours of drug education and up to 60 hours of community service for a second or subsequent offense such as possession at school, sales, or possession with intent to sell (A chart setting forth the penalties for each offense under Proposition 64 can be found at Appendix I to the detailed memo on Proposition 64 drafted by Judge J. Richard Couzens and Justice Tricia A. Bigelow.

Drug education and counseling must be provided at no cost and be evidence based

The mandatory drug education or counseling to be ordered by the court must be provided at no charge to participants, and to be based upon “science and evidence based principles and practices specific to the use and abuse of marijuana and other controlled substances.” This provision of the new law will be challenging for the courts in the short term as evidence based programs are typically not provided at no cost, and while much of the tax revenue from the legal sale of marijuana will ultimately be dedicated to drug education, counseling, and treatment, that revenue will not be available until fiscal year 2018-19. The court is not required to order drug education if it finds that it is unnecessary for the person, or that the education is unavailable. Information about existing evidence based programs and strategies for meeting the education requirements of Proposition 64 are included below. The drug education and community service requirements have a set period in which they must be completed ranging from 60 to 120 days, with an option to extend that time period by 30 days for good cause. Proposition 64 does not specify any penalty for the failure to complete either the education or the community service requirements.

Resentencing and Redesignation of Offense Provisions Apply to Juvenile Adjudications

Proposition 64, like Proposition 47, expressly provides for the resentencing and/or redesignating of convictions whose status was changed by the proposition, and expressly provides that these provisions apply equally to delinquency adjudications and dispositions. The resentencing and redesignation provisions are set forth in newly added Health and Safety Code section 11361.8. These provisions will allow any child with a current or former marijuana related disposition to petition the court for resentencing under the new law, or to have the old offense redesignated as an infraction if it was a misdemeanor or felony previously.

Expands Destruction of Records for Juvenile Marijuana Offenses

Proposition 64 amends Health and Safety Code section 11361.5 governing the destruction of arrest and conviction records concerning marijuana offenses which currently provides for the destruction court records in simple possession cases. The amended statute does the following: (1) expands the law to make records of most  marijuana related offenses (the sole exception is section 11357.5, which addresses offenses related to synthetic cannabinoids) for juveniles subject to destruction two years from the date of the conviction (or the arrest if no conviction); (2) requires that an offense occurring at a K–12 school be maintained until the offender is 18, at which time they are to be destroyed; and (3) requires the records of these offenses to also be purged from statewide criminal justice databases.

Evidence-Based Drug Education Programs

When selecting juvenile drug education programs that meet the requirements of the proposition courts need to consider some key factors in complying with the requirements of the new law. These requirements are that the program be science- or evidence-based, limited to the required hours (the minimum for a first offense is four hours), and free to the participant. The scope of this section is limited to the description of juvenile drug education best practices, including an overview of practices that have been shown to be ineffective; it will also provide limited recommendations for specific programs that may be used by the courts immediately. The information provided here should not be considered an exhaustive list of available options within all counties. There may be effective drug education programs in your county that we are unaware of. Also note that the information provided here is limited to short-term drug education programs. It is not meant to cover more intensive substance abuse treatment programs, prevention programs used in schools with a general population of students, or juvenile drug court interventions.

Evidence-Based Practices

Evidence-based practices (EBP) in the juvenile court is broadly defined as “the use of practices and programs that have been empirically tested and shown to reduce recidivism and improve outcomes among offenders” (see Judicial Council Policy Briefing: How Practices and Programs Become Evidence Based: A Review of Juvenile Justice Research (2012)).

For juvenile drug education programs, the outcomes of interest would be both reduced recidivism and the reduced use of marijuana. For more information on how practices and programs become evidence-based, please see the policy briefing referred to above for additional publications on this topic.

Effective and Ineffective Practices in Juvenile Drug and Alcohol Education/Prevention Programs

In order to have the desired effect on participants, it is important to select an education program that incorporates the methods that have been shown to be effective in reducing substance use in youth and to avoid those programs that primarily rely on unproven or ineffective practices. It should be noted that much of the research has focused on more intensive, or longer-term programs. There appears to be minimal information regarding effective, evidence-based approaches for very short-term drug education programs. However, there are some techniques and approaches that have been found to be effective and many available programs utilize at least some of these techniques.

Practices and programs that have been found to be mostly ineffective at reducing youth substance abuse include those that are education/information-only programs and those that use fear tactics or moral appeals regarding the “evils” of drug use (see e.g. Ineffectiveness of Fear Appeals in Youth Alcohol, Tobacco and Other Drug (ATOD) Prevention (2008)). Evidence-based drug education programs need to utilize effective strategies that change youth behavior, not just target knowledge or attitudes toward drug use. Programs that focus on self-esteem building and responsible decision making have also been found to be ineffective.

Some approaches that have been found to reduce substance use include cognitive behavioral training, behavioral rehearsal, resistance-skills training, family-based treatment models, mentoring, and counseling. It should be noted that many of the model programs for substance abuse prevention in teens go beyond the scope of the requirements of the proposition in terms of length, intensity, and program elements (e.g., some require more hours of programming, family participation, etc.).

Online Course Options

Online courses may be one option to consider when selecting a program that meets the requirements of the proposition. Research has found that some evidence-based, online programs can be an effective method for reducing youth substance use. Courses can usually be completed on a computer, tablet, or smartphone. Programs typically provide a certificate upon completion of the class.

An online course may be an ideal option for first-time offenders in that it meets the evidence-based program requirements and does not exceed the mandated number of treatment hours. Possible downsides are that none of these programs are free (some are available at a reasonable cost), few are available in languages other than English, and most require at least a 6th grade reading level or higher.

The first online program that may be a suitable option is the “Minor in Possession Class.” The certified course was created by a specialist and member of the National Association of Drug Court Professionals. The course is currently accepted in all California counties. According to the website, youth may be referred to the program through a judge, court, probation officer, or other referral method. The courses are either 4, 8, 12, or 16 hours in length. Cost for the shortest course is $25. The course focuses on both alcohol and drugs. Information on the course can be found at this website.

A second program that may meet the requirements is “Marijuana 101-JV.” This is a four-hour, evidence-based online intervention course used as a sanction for teens 16 and younger charged with an underage drug violation. Course topics include marijuana dependence, effects of marijuana, mental health issues, synthetic marijuana, local laws and legalization issues, and legal penalties associated with use. Students receive a confidential, personalized feedback profile that summarizes marijuana-related use and negative consequences, compares individual use with social norms, challenges personal expectations, and provides a range of strategies to quit. The course also can be supplemented with four intervention follow-ups. The site provides a list of program features and benefits for the courts.  More information on this online program can be found here.

Other online courses are available through other providers. However, most are more expensive than the options listed above and not all are evidence-based in content. Any program selected should be carefully screened to determine whether it meets the criteria and is appropriate for the youth in question.

In-person Drug Education and Counseling Programs

Courts may also consider the use of local programs that are offered through probation, community-based organizations, schools, youth courts, or juvenile drug courts, should those programs meet the required parameters of service hours, cost, and evidence-based curriculum. Some available programs may be too intensive or involve more hours of treatment than needed and may be more costly than online options, or may include additional requirements such as drug testing, parental participation, etc.

School-based programs that have been found to be effective in reducing youth drug use include Life Skills Training (LST) and Project Towards No Drug Abuse (Project TND). These programs include drug education components and utilize a number of evidence-based methods and techniques. Both involve more treatment hours than required by the legislation. However, Project TND may be worth considering for more serious or repeat offenders, as it is approximately 12 hours of programming and targets higher risk youth. The program is available in some California counties.

There are additional community-based programs across the state that may also meet the requirements of the proposition. As mentioned previously, many of these programs may exceed the mandated number of treatment hours or provide more intensive services than required. However, it may still be useful to consider these programs in some cases. These programs are only being offered as examples of what may be available across the state, not as specific program endorsements.

Orange County’s juvenile diversion program offers a 6-hour drug and alcohol education workshop for juveniles and their parents. There is a fee for the program, but it is based on the ability to pay. According to the program description, the groups teach problem-solving and decision making skills, and help youth become aware of their behavior patterns and the consequences of drug use.

Another program that is available in Los Angeles County is California Youth Services. The course involves approximately nine hours of instruction and is for minors between the ages of 12 and 17. Parental participation and youth drug testing are required.

Effective January 1, 2019, Assembly Bill 1793 (Stats. 2018, ch. 993) added section 11361.9 to the Health and Safety Code, which creates a statewide process for automatic review of marijuana-related convictions that may qualify for relief under Proposition 64 in the form of recall or dismissal of sentence, dismissal and sealing, or redesignation. Section 11361.9 removes the burden of seeking relief for these convictions from the defendant and makes it the responsibility of government agencies. Specifically, the state Department of Justice (DOJ) must review records in the state summary criminal history database and identify convictions that may qualify for relief. The Department of Justice is required to notify the prosecution in each jurisdiction of all cases that may qualify for relief, on or before July 1, 2019. The prosecution has until July 1, 2020, to review all referred cases and determine whether to request a hearing to challenge the granting of relief. A court that grants relief must notify the DOJ, and the DOJ in turn must update its criminal history information accordingly. Cases for persons who are currently serving a sentence or who proactively petition for relief will be prioritized for review.

Effective January 1, 2023, Assembly Bill 1706 (Stats. 2022, ch. 387) amends Health and Safety Code section 11361.9 to require courts to grant relief under Proposition 64 and notify the DOJ by March 1, 2023, in cases where the prosecution did not challenge the granting of relief by July 1, 2020.

Persons Currently Serving Sentences

A person currently serving a sentence for a conviction of an eligible offense, whether by trial or by open or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense under Proposition 64, may petition the court for resentencing or dismissal of eligible convictions. The request must be made before the trial court that entered the judgment of conviction in the case. If the petition satisfies the criteria for resentencing or dismissal of the sentence, the court must grant the petition unless the court determines that granting it would pose an unreasonable risk of danger to public safety.

Persons Who Have Completed Their Sentences

A person who has completed his or her sentence for a conviction for an eligible offense, whether by trial or by open or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense under Proposition 64, may file an application to have eligible convictions dismissed and sealed, or to have eligible convictions redesignated as misdemeanors or infractions. The request must be made before the trial court that entered the judgment of conviction in the case.

Misdemeanor or Infraction for All Purposes

If the court grants a request to redesignate an eligible offense as a misdemeanor or an infraction, the conviction is to be treated as a misdemeanor or an infraction for all purposes.

Proposition 64 explicitly provides for the sealing of records of dismissed convictions for persons who have completed their sentences. The court must “seal the conviction as legally invalid as now established under [the proposition].” Proposition 64 does not explicitly provide for the sealing of records of convictions dismissed by the court in response to petitions from persons who are currently serving a sentence. With respect to convictions that are redesignated, as opposed to dismissed,  Proposition 64 does not provide for sealing the records of convictions of individuals still serving sentences or those who have completed serving their sentences.

Proposition 64 also amends existing provisions that require the destruction of arrest or conviction records for specified marijuana-related offenses two years from the date of conviction or from the date of arrest if there was no conviction. Specifically, Proposition 64 adds arrest or conviction records for concentrated cannabis offenses under Health and Safety Code section 11357(a) to courts’ current record destruction obligations.  It also applies destruction requirements to juvenile records.