Can You Possess and Use Medical Marijuana in Your Car
My question involves criminal law for the state of: California
I was recently confronted by a Sheriff who determined that I was breaking the law (though he did not end up giving me any citations). I believe he was wrong, and to avoid future conflict would like some advice on this matter. Before I go on, I'd like to mention how professional and kind the Sheriff was, I should have asked for his name.
I am an adult, California physician-approved, medical cannabis patient. I was sitting in the passenger seat of my motor vehicle with the engine turned off and the keys out of the ignition in the seat beside me. I was on a rural road with no buildings for at least 10,000 feet in each direction (probably more) and with no other persons or vehicles around. I was consuming medical cannabis when the Sheriff drove up. I stepped out of my vehicle and when asked, told him, "I'm smoking medical marijuana, sir." He informed me that what I was doing was illegal and asked for my identification. I provided my valid CA driver's license and then my California medical cannabis physician's recommendation upon request.
He called in some information over the radio and informed me that he could get me for a DUI for smoking in my vehicle. He said that because he could establish my "intent" to drive my vehicle (which I honestly denied) that I could receive a DUI. I did not argue, but believe this is far from accurate. He also informed me that my California medical cannabis approval only allows me to transport medical cannabis in my vehicle from the dispensary to my home. I quoted California Senate Bill 420 (which I will quote below) but he did not seem to agree that what I was doing was legal. He informed me that I can only smoke in my residence, and anywhere else was illegal. I remained calm and said "yes sir" to everything despite disagreeing.
He asked if I had ever been arrested or had any active warrants/probations, to which I honestly answered no (I have no criminal history whatsoever). After we had a light conversation and another Sheriff arrived, he informed me that he would not be issuing me any citations, and that I needed to stay in my vehicle for 4 to 6 hours to sober up before driving. I thanked him, took a 4 hour nap, then drove home.
Now, here is an excerpt from California Senate Bill 420 which outlines the use of medical cannabis in California:
11362.79. Nothing in this article shall authorize a qualified
patient or person with an identification card to engage in the
smoking of medical marijuana under any of the following
circumstances:
(a) In any place where smoking is prohibited by law.
(b) In or within 1,000 feet of the grounds of a school, recreation
center, or youth center, unless the medical use occurs within a
residence.
(c) On a schoolbus.
(d) While in a motor vehicle that is being operated.
(e) While operating a boat.
Now, given that I did not meet any of the above conditions, am I right in assuming that my use of medical cannabis was legal at the time the Sheriff encountered me? Further, was I at any risk whatsoever of a DUI charge given that the vehicle was off and not in operation? Finally, was there absolutely anything he could have arrested me for given the circumstances described above? What pieces of legislature other than CA SB 420 encompass cannabis possession and consumption as it pertains to criminal law in California?
I am only concerned because the Sheriff seemed to honestly believe that I was breaking the law, which, given the text of CA SB 420, I believe was incorrect. Specifically, he seemed to believe that I could:
a) Only transport medical cannabis in my vehicle to and from a dispensary.
b) Could not consume medical cannabis in my non-operating vehicle, outside the bounds of other constraints detailed in CA SB 420
c) Was guilty of a DUI given my "intent" to drive after consuming medical cannabis
I will be contacting my District Attorney to clarify my concerns (note: I am not trying in any way to get the Sheriff in trouble. I believe his actions were honest and reasonable. I only want to clarify the law for my own sake), but I'm asking on these forums for the time being. I understand that even medical cannabis is still considered illegal under federal law, so if that is all you have to say, don't bother replying to this thread.
Thank you for any insight.
(One final side question. The officer used his flashlight to look into my vehicle from the outside as we were talking. I didn't have anything to hide so I didn't mind this, but kind of felt my privacy was being invaded. Does an officer have to request before doing this? I don't think it would technically be considered a "search".)
Re: Where is It Okay to Possess Medical Cannabis in California
Quote:
Quoting
Ryinzler
My question involves criminal law for the state of: California
I am an adult, California physician-approved, medical cannabis patient. I was sitting in the passenger seat of my motor vehicle with the engine turned off and the keys out of the ignition in the seat beside me. I was on a rural road with no buildings for at least 10,000 feet in each direction (probably more) and with no other persons or vehicles around.
So, no buildings in any direction for nearly 2 miles or more. When you’d finishing smoking your weed, what were you going to do then? Walk several miles to get wherever you needed to go? Sit there until the weed high wore off? Or were you, perhaps, going to drive that car? If it was the latter, that’s a problem. Just like you shouldn’t drive after drinking or taking any other prescription drug that may affect your ability to drive, you should not drive while high on weed. And given the circumstances, it's not hard to see why the officer suspected that is exactly what you were going to do. Had you actually driven the car after smoking it and shown any sign of impairment you’d have been fair game for a DUI arrest.
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Quoting
Ryinzler
Specifically, he seemed to believe that I could:
a) Only transport medical cannabis in my vehicle to and from a dispensary.
There is a possible problem here. California Vehicle Code section 23222(b) makes it an infraction to drive a vehicle while there is marijuana in it, unless authorized by law. (Note that § 23222(a) makes it illegal to drive a vehicle with an open container of alcohol in it, so (b) is basically like an open container law for pot.) Violating this law can cost you $100.
Health and Safety Code § 11362.71(e) provides that:
(e) No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article, unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article.
That provision provides good protection for the medical marijuana patient from arrest under Health and Safety Code section 11360(a) that, among other things, prohibits transporting any amount of marijuana in the state. But the definition of transporting is not the same as driving. Morever, this section only protects you from arrest, not from being cited for an infraction.
Re: Where is It Okay to Possess Medical Cannabis in California
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Quoting
Taxing Matters
If it was the latter, that’s a problem. Just like you shouldn’t drive after drinking or taking any other prescription drug that may affect your ability to drive, you should not drive while high on weed. And given the circumstances, it's not hard to see why the officer suspected that is exactly what you were going to do. Had you actually driven the car after smoking it and shown any sign of impairment you’d have been fair game for a DUI arrest.
Correct. However, I was intending on staying put until I was sober. And what I am claiming is that it was wrong of the officer to tell me that he could have cited me with a DUI for my actions. I was not operating the vehicle, period. I cannot be charged for a DUI that someone believes I may commit in the future.
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Taxing Matters
California Vehicle Code section 23222(b) makes it an infraction to drive a vehicle while there is marijuana in it, unless authorized by law.
Health and Safety Code § 11362.71(e) provides that:
[INDENT](e) No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article...
That provision provides good protection for the medical marijuana patient from arrest under Health and Safety Code section 11360(a) that, among other things, prohibits transporting any amount of marijuana in the state.
So, wouldn't Health and Safety Code § 11362.71(e) establish the condition "unless authorized by law" in California Vehicle Code section 23222(b) as true, therefore legally allowing me to possess marijuana in my vehicle?
Re: Where is It Okay to Possess Medical Cannabis in California
Quote:
Quoting
Ryinzler
So, wouldn't Health and Safety Code § 11362.71(e) establish the condition "unless authorized by law" in California Vehicle Code section 23222(b) as true, therefore legally allowing me to possess marijuana in my vehicle?
Not if the court applies the law as literally written. HSC § 11362.71 does not, by its express terms, protect you from being cited for driving with marijuana in your vehicle. It protects you from arrest for “possession, transportation, delivery, or cultivation of medical marijuana.” Thus, you have two problems here. First, it does not protect you from being cited for anything, only from being arrested. You do not have to be arrested to be cited. Second, it only covers “possession, transportation, delivery, or cultivation of medical marijuana.” None of those things are the same as driving with marijuana in the vehicle. Note that transport is defined in the HSC to mean something distinctly different than driving with marijuana in your vehicle. You may try arguing to a court after getting a citation that based on the apparent intent of HSC § 11362.71(e) the state ought not to be able to cite you for violating VC § 23222(b) even though the exception doe not literally cover it and see if the court will agree with you. I’d suggest you have a good lawyer make that argument for you for the best chance of success if you ever want to go that route, though that won’t be cheap. Despite medical marijuana being legal in the state there are still quite a few people who oppose any use of marijuana in the state. If you blaze up someplace in public, like out on a road in your car, don’t be surprised if you meet with some hostile reactions. This is why even NORML recommends choosing where you smoke your medical weed carefully. A cop and judge might be quite happy to hit you with a cite for violating a law that the medical marijuana act does not literally protect you from.
Re: Where is It Okay to Possess Medical Cannabis in California
Also keep in mind that given the nature of a "recommendation" they are not a universal protection. Since they cannot be verified and are not uniform in style, they are often quite suspect. You can use the recommendation as an affirmative defense, but it may not prevent a seizure, cite or arrest (given the circumstances and the amount found in the vehicle). The assertiveness in enforcement varies by county.
If you want to have a proverbial "get out of jail card," then obtain the state-issued Medical Marijuana card. Absent that, you can be stopped and may find yourself cited.
As for DUI, that will depend upon the circumstances. One of the exceptions to the observed driving rule is if the officer can articulate a reasonable belief that you had been driving UI and "may cause injury to himself or herself or damage property unless immediately arrested." I'd be quite reluctant to leave a stoned driver alone in a vehicle.
If you smoke in your car, you pretty much guarantee a detention and a search on any and every traffic stop. That stuff reeks and gives probable cause for a search. So, if you enjoy police contact and an increased risk of citation and or arrest, keep it up. Otherwise, smoke your weed at home and transport it in the trunk of the car.
Re: Where is It Okay to Possess Medical Cannabis in California
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cdwjava
If you want to have a proverbial "get out of jail card," then obtain the state-issued
Medical Marijuana card. Absent that, you can be stopped and may find yourself cited.
Thanks for this advice, I'll definitely take a look at that.
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Quoting
cdwjava
As for DUI, that will depend upon the circumstances. One of the exceptions to the observed driving rule is if the officer can articulate a reasonable belief that you had been driving UI and "may cause injury to himself or herself or damage property unless immediately arrested." I'd be quite reluctant to leave a stoned driver alone in a vehicle.
This makes sense from a law and public safety standpoint. Apparently the officer trusted me enough to leave me be. Having never been arrested and being a young, working college student most likely helped a ton here. Actually he noticed my sweatshirt and brought it up to ask me if I really went to college there (red with white letters). Also my politeness (if I do say so myself). He was a good guy.
Re: Where is It Okay to Possess Medical Cannabis in California
You say he was a Sheriff's Deputy. You're lucky. Most SO's in CA do not do DUI (or general traffic) enforcement as they sign MOUs with the CHP for that. So, the deputy may not have been all that confident with the laws concerning drugged driving.
Hopefully you grow out of this need for dope, or, since I doubt that you will heed any advice based upon the real risks of marijuana you will at the very least you will keep it at home next time.