WHEN MARIJUANA POSSESSION BECOMES AN INFRACTION

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.