What May or May Not be Legal

Driving Laws

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).

Prop 64 is similar to Prop 47, in that it provides for reclassifications and re-sentencings of past convictions.


Prop 47 offers two types of dismissals. For those people currently serving a sentence, which will probably include people on probation, parole, or some other kind of supervision, they can seek dismissal of the sentence. HSC11361.8(a) and explicitly refers to it as "dismissal of sentence," which implies that the conviction remains. On the other hand, for those people who have completed a sentence, they can have their convictions "dismissed and sealed."

The following offenses could be dismissed under HSC113681.8:
  • HSC11357(a) of less than 8 grams of concentrated cannabis (Legal under HSC11362.1(a)(2))
  • HSC11357(b) of less than 28.5 grams of marijuana (Legal under HSC11362.1(a)(1))
  • HSC11358 of less than 28.5 grams of marijuana (Legal under HSC11362.1(a)(1))
  • HSC11358 of fewer than 6 plants within private residence (Legal under HSC1163.1(a)(3)
  • HSC11360 for transportation of <28.5g of marijuana or <8g of concentrated cannabis (Legal under HSC11362.1(a)(1) or (2))
  • HSC11360 for giving away <28.5g of marijuana or <8g of concentrated cannabis (Legal under HSC11362.1(a)(1) or (2)

Firearm Rights

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.)

Federal Law

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 Open Letter (PDF) 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), 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:

Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?