California Health & Safety Code 11363 HS prohibits the cultivation of peyote and other mescaline-containing cacti, including planting, harvesting, drying, or processing them. Violating this law can result in charges ranging from a misdemeanor to a felony, depending on the circumstances.
Although public views on recreational drug use are changing and California has legalized marijuana (cannabis) for recreational purposes, peyote remains classified as a controlled substance at both the state and federal levels.
HS 11363 says, "Every person who plants, cultivates, harvests, dries, or processes any plant of the genus Lophophora, also known as peyote, or any part thereof shall be punished by imprisonment in the county jail for a period of not more than one year or in the state prison."
Therefore, with some exceptions, cultivating peyote and other mescaline-containing cacti is illegal under state law (Health & Safety Code 11363 HSC), as mescaline is classified as a Schedule I controlled substance.
Notably, possessing this psychedelic drug is illegal under California Health and Safety Code 11350(a) HS, which governs controlled substance possession. Cultivating peyote, outlined in HS 11363, is considered a more severe offense than mere possession. If convicted of cultivating peyote, you could face up to three years in state prison, depending on the specifics of your case.
What Exactly is Peyote?
Peyote, or Lophophora williamsii, is a small, spineless cactus indigenous to the southwestern United States and Mexico. It is famous for its psychoactive effects because it contains mescaline, a potent hallucinogen.
The cactus crown features disc-shaped buttons that are often chewed after being separated from the peyote roots, although the liquid can also be consumed. These can induce hallucinogenic effects that last up to 12 hours.
Indigenous cultures have long used the plant in religious rituals and medicine. However, due to its psychoactive effects, peyote is classified as a Schedule I controlled substance under federal law in the United States, making it illegal to cultivate, possess, or distribute.
HS 11363 - Clarified
California's Health & Safety Code 11363 HS bans planting, cultivating, harvesting, or processing peyote or any related cactus species containing mescaline within the state. To convict you of this offense, prosecutors only need to establish the following elements:
- You participated in planting, cultivating, harvesting, or processing peyote or related species; and
- You recognized the plant as peyote.
Although HSC 11363 does not specify any exceptions, federal law allows the cultivation of peyote on Native American reservation lands where it is used in Native American rituals. Since these lands are outside California's jurisdiction, HSC 11363 does not apply there.
The Issue of Religious Freedom
A key complication in enforcing HSC 11363 and other laws related to peyote is that it is often used in Native American Church religious practices (known as "peyotism"). Federal law explicitly safeguards the use and distribution of peyote by Native Americans when it is for genuine religious purposes.
42 U.S.C. 1996a says, "The Congress finds and declares that-
(1) For many Indian people, the traditional ceremonial use of the peyote cactus as a religious sacrament has for centuries been integral to a way of life and significant in perpetuating Indian tribes and cultures.
(2) Since 1965, this ceremonial use of peyote by Indians has been protected by Federal regulation.
(3) While at least 28 States have enacted laws that are like, or are in conformance with, the Federal regulation that protects the ceremonial use of peyote by Indian religious practitioners, 22 States have not done so, and this lack of uniformity has created hardship for Indian people who participate in such religious ceremonies.
(4) the Supreme Court of the United States, in the case of Employment Division v. Smith, 494 U.S. 872 (1990), held that the First Amendment does not protect Indian practitioners who use peyote in Indian religious ceremonies and raised uncertainty about whether this religious practice would be protected under the compelling State interest standard; and
(5) the lack of adequate and precise legal protection for the religious use of peyote by Indians may serve to stigmatize and marginalize Indian tribes and cultures and increase the risk that they will be exposed to discriminatory treatment."
The California Supreme Court has additionally ruled that no individual, Native or otherwise, can be prosecuted for possessing peyote if it can be demonstrated that it was used for genuine religious reasons.
However, this offers some legal protection to members of the Native American Church who use peyote in their religious rituals. Still, it does not cover the cultivation or distribution of the plant outside reservation lands. Furthermore, individuals are still required to demonstrate that their use was for authentic religious reasons.
What Are the Possible Penalties?
In California, cultivating peyote is classified as a "wobbler" offense, which means it can be prosecuted as either a misdemeanor or a felony, depending on the specific circumstances, case details, and your criminal record.
For misdemeanor charges, you might face the following consequences:
- Fines can reach up to $1000; and
- Up to one year in jail within the county.
For felony charges, you may face:
- Fines can reach up to $10,000; and
- Imprisonment for up to 3 years in a state facility.
What are the Typical Defenses?
If you're accused of violating HSC 11363, a qualified California defense lawyer might use various strategies to challenge the charges. These include:
- Mistake of fact: If you can demonstrate that you were unaware that the plant you were cultivating was peyote, it might serve as a valid defense.
- Religious freedom: If you can demonstrate that your peyote cultivation was solely for religious reasons, you might be able to have the charges dropped. This defense can be complicated to prove if the cultivation occurred outside reservation lands.
- Invalid Search and Seizure: If peyote was found during an unlawful search, a defense attorney might argue to exclude the evidence.
Contact our California criminal defense attorneys for more information. The Hedding Law Firm has offices located in Los Angeles, CA.
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