Vehicle Code 23122(b) - Possession of Marijuana While Driving
Since recreational marijuana has been legalized in California, it has become more important than ever to understand the legal intricacies associated with its use—and when and how it's acceptable to possess it, especially in the context of driving.
With Vehicle Code 23222(b) VC, California law effectively applies the "open container" rule to cannabis possession like alcohol.
Simply put, this statute that makes it an offense for a driver to operate a motor vehicle while in possession of an open container of marijuana. Under California law, a driver can transport a closed container of marijuana or one that is still sealed.
VC 23122(b) says, “(1) Except as authorized by law, a person who has in their possession on their person while driving a motor vehicle upon a highway…. a receptacle containing cannabis or cannabis products, as defined by Section 11018.1 of the Health and Safety Code, which has been opened or has a seal broken, or loose cannabis flower not in a container, is guilty of an infraction….”
(2) Paragraph (1) does not apply to a person who has a receptacle containing cannabis or cannabis products that have been opened, has a seal broken, or the contents of which have been partially removed, or to a person who has a loose cannabis flower not in a container, if the receptacle or loose cannabis flower not in a container is in the trunk of the vehicle.
(c) Subdivision (b) does not apply to a qualified patient with an identification card, as defined in Section 11362.7 of the Health and Safety Code, if (1) The person is carrying a current identification card or a physician's recommendation. (2) The cannabis or cannabis product is in a container or receptacle that is sealed, resealed, or closed.”
A violation of this law, also known as "possession of marijuana while driving,” can generate a fine. Let's review this law further below.
What Does the Law Say?
As noted, under Vehicle Code 23222(b) VC, it is illegal for a person to drive with an open container of marijuana in their vehicle.
That means any container, such as a bag or bottle, that either is unsealed or has its seal broken and contains marijuana buds, dried leaves, or other cannabis-based products.
This can also include containers that have been partially consumed, as well as marijuana that is not in any sealed container at all, for example, a joint in one's pocket. Possessing marijuana while driving under Vehicle Code Section 23222(b) VC occurs when:
- A driver possesses an ounce or less of marijuana while driving in a motor vehicle on a highway, and
- the driver is not otherwise authorized by law to possess the marijuana.
This law applies to drivers on any public road, including freeways or highways, but does not apply to private roads.
What is the Definition of an Open Container?
The term "open container" under this code refers to any receptacle that contains marijuana and has been opened, or the seal broken, or any marijuana is partially removed.
This includes any container of marijuana that is readily accessible to the driver or any passenger while the vehicle is in motion.
Examples of "open containers" may include:
- A previously sealed bag of cannabis purchased at a dispensary whose seal has been broken;
- Cannabis edibles in an open package;
- A rolled joint kept in the shirt pocket of the driver or a passenger;
- A bong that has marijuana in it.
What Are the Exceptions to the Rule?
VC 23222 allows two exceptions to the "open container" rule when it comes to marijuana in a vehicle:
- Container in the trunk: If the open container of marijuana is stored in the trunk of a motor vehicle or otherwise stored so it is not readily accessible to the driver or any passenger, then no violation has occurred. Effectively, the trunk itself is a "closed container."
- Authorized by law: VC 23222(b) makes an exception for those "authorized by law" to possess marijuana. Specifically, per VC 23222(c), this refers to people who hold a valid medical marijuana card, provided the marijuana is stored in a container that has been sealed, re-sealed, or closed. In other words, not being actively used.
What Are Some Examples?
EXAMPLE 1: Jake is pulled over for speeding. The officer notices the smell of marijuana in the car, which gives him probable cause to search the vehicle. The officer discovers an open bag of marijuana tucked under a jacket in the backseat. Jake can be charged with possessing marijuana while driving under VC 23222(b).
EXAMPLE 2: Mary has a valid medical marijuana card. She is stopped for running a red light, and the officer notices a closed container of cannabis edibles beside her in the car. While she can be ticketed for running the light, she cannot be charged under VC 23222(b), as her possession of marijuana is authorized by law.
What Are the Related Crimes?
Several California laws are related to Vehicle Code 23222(b) driving with an open container of marijuana, such as the following:
- Vehicle Code 23222(a) VC – open container while driving;
- Vehicle Code 23152(a) VC – driving under the influence (DUI);
- Vehicle Code 23152(f) VC – DUI of drugs;
- Vehicle Code 23221 VC – drinking alcohol in a vehicle;
- Vehicle Code 23224 VC – possess alcohol in a vehicle under 21;
- Health and Safety Code 11359(b) – marijuana sales under 18.
What Are the Penalties for VC 23222(b)?
Driving with an open container of marijuana is an infraction under California law. For matters of simple open containers, the fine is $100. However, you could violate other laws and face additional charges if, for example:
- You are under the age of 21. Minors are not permitted to possess marijuana in any quantity.
- The amount of marijuana is more than one ounce without a valid medical marijuana ID).
- You are using marijuana while driving, defined under VC 23152(f).
What Are the Defenses for VC 23222(b)?
If you are ticketed for violating the marijuana open container rule, you may be able to contest the infraction using one of the following common defenses discussed below.
Perhaps we can argue that marijuana was not open or accessible. If you can show that the marijuana was, in fact, in a sealed, child-proof container, or if the marijuana was in the trunk, you can get the charge dismissed.
Perhaps we can argue that there was a lack of knowledge. You may be able to say that you were unaware of the presence of marijuana. For example, you were driving someone else's vehicle, or a passenger was carrying marijuana without your knowledge.
Perhaps we can argue that the vehicle was on a private road or property. If you were not on a public roadway or land with an open container, VC 23222(b) does not apply.
Perhaps we can argue that there was an unlawful vehicle search. If the marijuana was discovered during a vehicle search without probable cause, any evidence found during the search could be dismissed.
You can contact us for a case review by phone or using the contact form. Eisner Gorin LLP is based in Los Angeles, CA.