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.
- that you are an authorized medical marijuana user or caregiver,
- that the pot didn't belong to you, or
- 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.
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
1California Health and Safety Code 11357(b) -- Possession of marijuana.
2California Vehicle Code 23222(b) VC.
3City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 375.
4People v. Wright (2006) 40 Cal.4th 81, 93.
5California Health and Safety Code 11362.79 HS -- Places where medical use of marijuana is prohibited.
6California Vehicle Code 23152(a) VC -- Driving under the influence of marijuana.
7California Jury Instructions - Criminal (CALJIC 16.030).
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.
11Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada's marijuana possession laws. Their Nevada law offices are located in Reno and Las Vegas.