Recreational Marijuana is Now Legal in California and with That New Laws

January 1, 2018 Assembly Bill 64 went into law going allowing adults in California to buy marijuana for recreational purposes. Here are the new California marijuana related laws.

You cannot have an “open container” of Marijuana in the car while driving.

California Vehicle Code 23222 is the “open container” law. It is illegal to drive with an open container of alcohol, and the law has been amended to include marijuana. It is illegal to drive a vehicle with an open container of marijuana or marijuana product. You are likewise not permitted to drink alcohol and/or smoke marijuana while driving.

The open container law is neither a felony nor a misdemeanor, but it is an infraction similar to a speeding traffic ticket.

California Vehicle Code 23222:

(a) No person shall have in his or her possession on his or her person, while driving a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle, containing any alcoholic beverage which has been opened, or a seal broken, or the contents of which have been partially removed.

(b) (1) Except as authorized by law, every person who has in his or her possession on his or her person, while driving a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, any receptacle containing any 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 punishable by a fine of not more than one hundred dollars ($100).

(2) Paragraph (1) does not apply to a person who has a receptacle containing cannabis or cannabis products that has been opened, has a seal broken, or the contents of which have been partially removed, or to a person who has 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 or person with an identification card, as defined in Section 11362.7 of the Health and Safety Code, if both of the following apply:

(1) The person is carrying a current identification card or a physician’s recommendation.

(2) The cannabis or cannabis product is contained in a container or receptacle that is either sealed, resealed, or closed.

It is Illegal to smoke marijuana outside in public.

It is illegal smoke in public or within 1,000 feet of a school or daycare center when children are present. Local governments/cities will create more laws which may be more restrictive.

It is illegal to be “under the influence” and driving.

It is against the law to be “under the influence” of either alcohol, weed, or alcohol + marijuana pursuant to California Vehicle Code 23152. Defining “under the influence” under California law is difficult. There is no legal limit for marijuana in the blood, like there is a per se alcohol legal limit for alcohol of .08 (or .01 if you’re under 21 or on probation…or .04 if you have a commercial license and are driving commercially). But even though there is no legal limit for weed, you can still be convicted of being “under the influence.”

Defining “under the influence”: California law (per the Jury Instruction CALCRIM 2110) defines being “under the influence” as no longer being “able to drive a vehicle with the same care and caution of a sober person, using ordinary care, given similar circumstances.”

This is an incredibly broad definition and incredibly subjective.

Driver’s rights related to DUI marijuana/DUI alcohol.

1 You do NOT need to tell police that you smoked weed (or taken any kind of drug, or drank any kind of alcohol). You don’t have to answer any of those questions about if you smoked, what you smoked, when you smoked, how you smoked. Your statements are often times admissible as evidence against you at trial.

2 Beyond not confessing, you don’t need to answer any questions at all actually. Usually these questions are: where are you coming from, where are you going, what affects do you feel from the alcohol/marijuana? You have a duty to show the officer your identification. But you absolutely have no duty to give statements to arrest and convict you.

3 You do NOT need to perform any field sobriety tests or drug recognition examinations. This includes any balance tests, and any mouth swab or breath tests for marijuana as long as you’re over 21 or/and not on DUI probation. Many times doing these tests before arrest just create more evidence against you.

4 Do you need to give a blood test? The Vehicle Code says you gave implied consent to give blood if investigated for a DUI however the California Supreme Court is set to decide some recent appellate case decisions about this area of law. This is an unsettled area of law for now. If you refuse the blood test, police will most likely get a warrant, take your blood anyway and if a refusal is proven, you may suffer more punishment at either/both the DMV or Court levels.

5 Having a valid prescription/marijuana rec is not a legal defense to being under the influence and driving.

Jeremy Brehmer is well versed in all DUI related defenses and can help protect you even if you have not protected yourself. Contact a Bakersfield DUI attorney from Brehmer Law Corporation if you have been arrested and charged with a marijuana related DUI.

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