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  When Marijuana Possession Becomes an Infraction
Posted by CN Staff on November 06, 2010 at 16:31:33 PT
By Kathleen Pender 
Source: San Francisco Chronicle 

cannabis San Francisco, CA -- California pot smokers can breathe a little easier next year. Under a state law that takes effect Jan. 1, possession of less than an ounce of marijuana will be an infraction punishable by a $100 fine. Today it is a misdemeanor punishable by a $100 fine.

The new law does not go as far as Proposition 19, which voters rejected Tuesday. That would have legalized possession of less than 1 ounce of marijuana for personal use by anyone 21 or older in California.

Under the law passed by the Legislature and signed by the governor, SB1449, possession of less than an ounce will no longer be a misdemeanor or go on a person's criminal record. Instead, it will be an infraction, similar to a speeding ticket. That has some people wondering whether the infraction will go on a person's driving record and affect insurance rates.

Here are answers to these and other questions about how the new law will affect employment applications and federal student financial aid. These questions assume the person does not have a legitimate medical marijuana card.

Q: If I get caught with less than an ounce, what's the worst that will happen?

A: Assuming you are not driving under the influence or on school property, you could be convicted of an infraction and subject to a $100 fine. If you don't want to contest it, you will sign the citation and send in the money. (Possession of less than an ounce on the grounds of a K-12 school during school hours is still a misdemeanor and subject to stiffer penalties.)

Q: Can I fight it?

A: Yes, you can ask for a trial before a judge, but you cannot ask for a jury trial or a court-appointed attorney, like you can today.

"Defendants in misdemeanor cases are entitled to jury trials," which can cost the public $1,000, says the bill's sponsor, Sen. Mark Leno, D-San Francisco. "We were spending tens of millions of dollars each year on jury trials, clogging courts for simple possession cases."

The new law could make it harder to get charges dismissed.

"The way it was before, in most counties, if you insisted on a jury trial they would likely dismiss the case rather than tie up the courtroom for something where you would get a $100 fine. In that sense, you won't have that option any more," says William Panzer, an Oakland attorney who is on the board of the National Organization for the Reform of Marijuana Laws.

Q: I've heard the new law will make possession of less than an ounce like a traffic ticket. Does that mean it will go on my driving record? Will it affect my insurance rates?

A: Assuming you are not driving while stoned, the answer to both questions is no.

Possession alone is not a motor vehicle offense and will not go on your driving record today or when the new law takes effect. It is not one of the factors insurance companies in California can use to set rates.

"By itself, a pot-related citation that does not go on DMV records cannot be used to determine your rates," says Molly DeFrank of the state insurance department.

However, driving under the influence of marijuana is a serious offense. If convicted, it will go on your DMV and criminal record and increase your insurance rates. The new law will not change this.

Q: Will a pot infraction go on my criminal record?

A: Today, if you are convicted of possessing less than an ounce of marijuana in California, it will go on your criminal record and drop off after two years. A pot infraction will not go on your criminal record, although it will be in court records if someone wanted to dig it up.

Q: Will I have to disclose a pot infraction on employment applications?

A: Probably not. Today, many employers ask if job applicants have been convicted of a felony or misdemeanor. California Labor Code Section 432.8 prohibits them from asking applicants to disclose "any convictions for certain marijuana-related misdemeanors that are more than two years old. One of them is possession of less than 28.5 grams" or roughly 1 ounce, says Felicia Reid, a partner with employment-law firm Curiale Hirschfeld Kraemer.

Most employers in California deal with this by adding a phrase such as "you need not disclose marijuana-related misdemeanors more than two years old."

If employers don't change their forms, applicants will not have to disclose marijuana infractions. Employers could ask if applicants have been convicted of marijuana infractions, but are not likely to.

"Unless it's a very unusual kind of employment, 99 percent of employers are not going to inquire about civil infractions," says Garry Mathiason, a senior partner with employment law firm Littler Mendelson.

Q: Can I lose college financial aid if I'm convicted of a marijuana infraction?

A: If you are convicted of a marijuana misdemeanor you can lose federal student aid. If you are convicted of an infraction, it's not clear.

A federal law states that "a student who is convicted of any offense under any federal or state law involving the possession or sale of a controlled substance" while receiving federal student aid will no longer be eligible for federal aid for a certain period of time. This period can be shortened if the student goes through drug rehab. Student aid includes all federal loans and grants.

However, a U.S. Department of Education regulation states that "a conviction means only a conviction that is on a student's record." It does not define record.

If you are convicted of a marijuana infraction, it's still a conviction and that could potentially jeopardize your student aid. But if it's not on your criminal record, it's not clear whether it would have to be reported on the federal student aid application.

Jane Glickman, a spokeswoman for the education department, says, "We will review the changes in the California law to see how it affects the federal provision."

Students who need help with this question can call (800) 433-3243, although it may be a while before they get a definitive answer.

Net Worth runs Tuesdays, Thursdays and Sundays.

This article appeared on page D - 1 of the San Francisco Chronicle

Source: San Francisco Chronicle (CA)
Author: Kathleen Pender
Published: November 6, 2010
Copyright: 2010 San Francisco Chronicle

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