Driving in Possession of Marijuana
California Vehicle Code 23222(b) VC

Driving around with pot in your car is a crime in and of itself.

Though one might assume it falls under the umbrella of simple possession of marijuana per California Health and Safety Code 11357(b) HS1, it does not.

Driving in possession of marijuana (up to one ounce) is punished separately under California Vehicle Code 23222(b) VC. But either offense subjects you to the same penalty: up to a $100 fine, plus court costs.

The good news is that a savvy criminal defense attorney versed in California marijuana laws should be able to prevent a conviction by arguing any of three legal defenses:

  1. that you are an authorized medical marijuana user or caregiver,
  2. that the pot didn't belong to you, or
  3. that the marijuana was discovered during an illegal search.

Authorized possession under California's medical marijuana program

California Vehicle Code 23222(b) VC states, in pertinent part,

"(b) Except as authorized by law, every person who possesses, while driving a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, not more than one avoirdupois ounce of marijuana, other than concentrated cannabis as defined by Section 11006.5 of the Health and Safety Code, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100)."2

It is the "except as authorized by law" provision that permits an authorized California medical marijuana user or caregiver to possess the substance while driving.3 After all, how else would he or she get it home from the dispensary?4

It is important to understand that legally possessing pot while driving is different than smoking pot while driving.  No one, including authorized medical marijuana users, are permitted to drive if they are "high" from consuming pot.5 Doing so subjects you to California "driving under the influence" DUI of marijuana charges6.

You don't legally "possess" the marijuana

VC 23222(b) punishes driving while possessing marijuana.  It therefore follows that if you don't possess marijuana, you aren't guilty of this crime.

If you "possess" marijuana, it means you have control over the drug.  "Control" can be actual or constructive.  "Actual control" means that you have direct, physical control over the drug.7

Example:  You are actively smoking weed or have an unlit joint in your hand.

"Constructive control," on the other hand, means that you have access to the marijuana and the right to control it.

Example:  Even while you are away from home, you have constructive possession of the pot that belongs to you and is in your dresser drawer.

It isn't hard to imagine a variety of instances where you could be caught driving with marijuana, where you don't really possess it in the legal sense.

Example:  The cop finds the weed in the glove compartment, under the passenger seat, in the back seat, or in the trunk.

If the marijuana is hidden anywhere except possibly on your person, it may be that you didn't know it was there. After all, it could have been left behind by a friend, family member, or someone who just used your car, and that person simply forgot to take it with him or her.  Whatever the circumstances, if the marijuana isn't yours and you didn't know it is there, then you didn't "possess" the drug.

The cops find the marijuana during an illegal search

If the police stop you for a routine traffic stop (you were speeding, for example), and illegally search your car, your attorney should be able to convince the prosecutor and/or judge to dismiss the charge.

As Victorville DUI defense attorney Michael Scafiddi explains8, "Unless the marijuana is in plain sight, discovered after you are arrested pursuant to a legal search of your car, or found because you give the officer permission to look in your car, evidence that the police discovered marijuana in your car should be excluded.  It's my job to ensure that you are not convicted based on illegally obtained evidence."

Hash & larger quantities of pot

A couple of additional points:

The first is that this section doesn't apply to concentrated cannabis or "hash / hashish" (that is, the separated resin obtained from marijuana9).  Possession of concentrated cannabis is punished under California Health and Safety Code 11357(a) HS and subjects the defendant to a larger fine and a possible county jail or state prison sentence.10

The second is that it only applies to possession of one ounce (1 oz) or less of marijuana.  If you are found driving with more than an ounce of pot, prosecutors will likely charge you with the more serious crime of transporting marijuana under California Health and Safety Code 11360 HS.

Call us for help.
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If you or loved one is charged with Vehicle Code 23222(b) VC driving in possession of marijuana and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Nevada criminal defense attorneys represent clients accused of violating Nevada's marijuana laws, which are very similar to those in California.  For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.11

You may find further helpful information in our related articles on Health and Safety Code 11357(b) HS Simple Possession of Marijuana, Health and Safety Code 11360 HS Transporting Marijuana, The Compassionate Use Act (Medical Marijuana), Vehicle Code 23152(a) VC Driving Under the Influence of Marijuana, Penal Code 1000 PC Drug Diversion, and California Legal Defenses.

Legal References:

1California Health and Safety Code 11357(b) -- Possession of marijuana.  ("(b) Except as authorized by law, every person who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($100). Notwithstanding other provisions of law, if such person has been previously convicted three or more times of an offense described in this subdivision during the two-year period immediately preceding the date of commission of the violation to be charged, the previous convictions shall also be charged in the accusatory pleading and, if found to be true by the jury upon a jury trial or by the court upon a court trial or if admitted by the person, the provisions of Sections 1000.1 and 1000.2 of the Penal Code shall be applicable to him, and the court shall divert and refer him for education, treatment, or rehabilitation, without a court hearing or determination or the concurrence of the district attorney, to an appropriate community program which will accept him. If the person is so diverted and referred he shall not be subject to the fine specified in this subdivision. If no community program will accept him, the person shall be subject to the fine specified in this subdivision. In any case in which a person is arrested for a violation of this subdivision and does not demand to be taken before a magistrate, such person shall be released by the arresting officer upon presentation of satisfactory evidence of identity and giving his written promise to appear in court, as provided in Section 853.6 of the Penal Code, and shall not be subjected to booking.")

2California Vehicle Code 23222(b) VC.

3City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 375.  ("Although the CUA speaks only to the possession and cultivation of marijuana ([California Health and Safety Code] § 11362.5, subd. (d) [referencing §§ 11357 and 11358] ), the MMP is more broadly intended to protect a qualified patient "who transports ... marijuana for his or her own personal medical use." (§ 11362.765, subd. (b)(1); People v. Wright, supra, 40 Cal.4th at p. 93, 51 Cal.Rptr.3d 80, 146 P.3d 531.) As we have explained above, the record indicates Kha is such a patient. However, the only transportation statute referenced in the MMP is section 11360. (See § 11362.765, subd. (a).) Subdivision (a) of section 11360 makes it a felony to transport marijuana, and subdivision (b) renders such conduct a misdemeanor in cases where the transportation involves not more than 28.5 grams (1.0053 ounces) of marijuana, other than concentrated cannabis. The MMP does not mention Vehicle Code section 23222, subdivision (b), the law with which Kha was charged. That provision states that "[e]xcept as authorized by law, every person who possesses, while driving a motor vehicle ... not more than one avoirdupois ounce [28.3495 grams] of marijuana, other than concentrated cannabis ... is guilty of a misdemeanor[.]" Obviously, a violation of this provision also constitutes a violation of section 11360, subdivision (b). The Vehicle Code provision is simply a more specific statute covering the act of driving, as opposed to other methods of transportation. We are therefore impelled to the conclusion it would be illogical to find the MMP covers one provision, but not the other. Such a result would lead to the absurd consequence of permitting a defendant who drives with a large amount of marijuana to invoke the MMP (see, e.g., People v. Wright, supra, 40 Cal.4th at pp. 95-98, 51 Cal.Rptr.3d 80, 146 P.3d 531 [defendant who drove with over a pound of marijuana in his car was entitled to invoke the MMP] ), while excluding drivers who transport the small amount covered by the Vehicle Code section. We cannot construe the law to permit such a clearly unintended and patently nonsensical result. (Cf. People v. Trippet (1997) 56 Cal.App.4th 1532, 1550, 66 Cal.Rptr.2d 559 [pre-MMP case allowing defendant to invoke CUA as a defense to the charge of transporting marijuana under section 11360, even though that offense is not mentioned in the CUA].) There is an additional, even more fundamental reason why qualified patients who are charged with violating Vehicle Code section 23222, subdivision (b) should be included within the ambit of the state's medical marijuana laws. As Kha notes, that section prohibits driving with marijuana, "[e]xcept as authorized by law." (Veh.Code, § 23222, subd. (b).) Since the MMP allows the transportation of medical marijuana (§ 11362.765, subd. (b)(1); People v. Wright, supra, 40 Cal.4th at pp. 93-94, 51 Cal.Rptr.3d 80, 146 P.3d 531), the MMP effectively authorizes the conduct described in Vehicle Code section 23222, subdivision (b), when, as here, the conduct at issue is the transportation of a small amount of medical marijuana for personal use-conduct "authorized by law."")

4People v. Wright (2006) 40 Cal.4th 81, 93.  ("The MMP was introduced in 2003 as Senate Bill No. 420 (2003-2004 Reg. Sess.). In uncodifed portions of the bill the Legislature declared that, among its purposes in enacting the statute, was to "[c]larify the scope of the application of the act and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers." (Stats.2003, ch. 875, § 1, subd. (b)(1).) Additionally, the Legislature declared that a further purpose of the legislation was to "address additional issues that were not included within the act, and that must be resolved in order to promote the fair and orderly implementation of the act." ( Id., § 1, subd. (c).)  To achieve the goal of "facilitat[ing] the prompt identification of qualified patients and their designated primary caregivers," the Legislature established a voluntary program for the issuance of identification cards to such qualified patients. (§ 11362.71 et seq.) The Legislature extended certain protections to individuals who elected to participate in the identification card program. Those protections included immunity from prosecution for a number of marijuana-related offenses that had not been specified in the CUA, among them transporting marijuana. "Subject to the requirements of this article, the individuals specified in subdivision (b) shall not be subject, on that sole basis, to criminal liability under Section 11357 [possession of marijuana], 11358 [cultivation of marijuana], 11359 [possession for sale], 11360 [transportation], 11366 [maintaining a place for the sale, giving away or use of marijuana], 11366.5 [making available premises for the manufacture, storage or distribution of controlled substances], or 11570 [abatement of nuisance created by premises used for manufacture, storage or distribution of controlled substance]." (§ 11362.765, subd. (a).) By authorizing a CUA defense to these other marijuana-related offenses, the Legislature furthered its goal of "address[ing] additional issues that were not included within the act, and that must be resolved in order to promote the fair and orderly implementation of the act." (Stats.2003, ch. 875, § 1, subd. (c).)")

5California Health and Safety Code 11362.79 HS -- Places where medical use of marijuana is prohibited.  ("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.(d) While in a motor vehicle that is being operated.")

6California Vehicle Code 23152(a) VC -- Driving under the influence of marijuana.  ("(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.")

7California Jury Instructions - Criminal (CALJIC 16.030).  ("There are two kinds of possession: actual possession and constructive possession.  "Actual possession" requires that a person knowingly exercise direct physical control           over a thing. "Constructive possession" does not require actual possession but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons.")

8Victorville criminal defense attorney Michael Scafiddi defends clients throughout the Inland Empire, including Banning, Barstow, Rancho Cucamonga, Palm Springs, Hemet, Riverside, and San Bernardino.

9See California Vehicle Code 23222(b) VC, endnote 2, above.

See also California Health and Safety Code 11006.5 HS -- Concentrated cannabis.  (""Concentrated cannabis" means the separated resin, whether crude or purified, obtained from marijuana.")

10California Health and Safety Code 11357(a) HS -- Possession of concentrated cannabis.  ("(a) Except as authorized by law, every person who possesses any concentrated cannabis shall be punished by imprisonment in the county jail for a period of not more than one year or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment, or shall be punished by imprisonment in the state prison.

11Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's marijuana possession laws. Their Nevada law offices are located in Reno and Las Vegas.

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