Vehicle Code 23221 VC is the California statute that defines the offense of drinking alcohol or smoking marijuana in a motor vehicle. People break this law if they drive a motor vehicle, or ride as a passenger in one, and drink alcohol or smoke marijuana or any marijuana product. A violation of this code section is an infraction punishable by a fine of $250.00.
VC 23221 is one of California’s “open container laws” (Vehicle Code Sections 23221 – 23229 VC).
The language of the code section reads:
23221. (a) A driver shall not drink any alcoholic beverage or smoke or ingest marijuana or any marijuana product while driving a motor vehicle upon a highway.
(b) A passenger shall not drink any alcoholic beverage or smoke or ingest marijuana or any marijuana product while in a motor vehicle being driven upon a highway.
(c) A violation of this section shall be punished as an infraction.
- driving a car down a highway while drinking a beer.
- riding in the back of a vehicle and smoking marijuana.
- riding in a camper or housecar and drinking alcohol.
People accused of an offense under this statute can challenge the accusation with a legal defense. A few common defenses include defendants showing that they were:
- falsely accused,
- not on a public highway, and/or
- a passenger in a for-hire vehicle.
The offense is punishable by a $250 fine.
Our California criminal defense attorneys will highlight the following in this article:
- 1. How does California law define “drinking alcohol/smoking marijuana in a motor vehicle”?
- 2. Are there legal defenses to VC 23221 charges?
- 3. What are the penalties?
- 4. Are there related offenses?
1. How does California law define “drinking alcohol/smoking marijuana in a motor vehicle”?
People can violate California Vehicle Code 23221 in one of two ways. These are by:
- drinking any alcoholic beverage or smoking marijuana or any marijuana product while driving a motor vehicle upon a highway, or
- drinking any alcoholic beverage or smoking marijuana or any marijuana product while in riding as a passenger in a motor vehicle being driven upon a highway.1
A “motor vehicle” means any vehicle that is self-propelled.2
Note, though, that this statute does not apply to passengers that are riding in motor vehicles that carry people for hire. Examples of these types of vehicles include:
- party buses,
- rented limousines, and
A “highway,” for purposes of this statute, means any public road or other place that is publicly maintained and open to the public for purposes of vehicular travel.4
2. Are there legal defenses to VC 23221 charges?
Traffic offense lawyers draw upon several legal strategies to help clients contest charges under this law. Three common ones include showing that:
- a defendant was falsely accused.
- a defendant was no on a public highway.
- an accused was a passenger in a for-hire vehicle.
2.1. Falsely accused
Unfortunately, people get falsely accused of this offense all of the time. The main reason is that police officers often mistakenly believe that a driver or passenger is consuming an alcoholic beverage or smoking marijuana. Therefore, a common defense is for an accused to show that he/she was unjustly blamed.
2.2. No public highway
Recall that people are only guilty of this offense if they are driving on a public highway or riding as a passenger in a car that is being driven down a public highway. Further, “public highway” has a precise definition under California law. This means it is always a defense for a person to show that they were not in a car that was on such a road. Perhaps, for example, they were in a car on a private driveway.
2.3. Passenger in a for-hire vehicle
Recall too, that this statute does not apply to passengers riding in a for-hire vehicle. A defense, then, is for a defendant passenger to show that they were in this type of auto.
3. What are the penalties?
A violation of this section is an infraction.
Note that people under 21 years of age can face harsher penalties under Vehicle Code 23224. This law makes it a misdemeanor offense for any person under 21 to drive a car, or ride in one, while drinking an alcoholic beverage.5
A violation of this law is punishable by:
- six months in county, and/or
- a maximum fine of $1,000.6
4. Are there related offenses?
There are three offenses related to drinking alcohol/smoking marijuana in a motor vehicle. These are:
- driving in possession of alcohol or marijuana – VC 23222,
- possession of alcohol in a vehicle by a person under 21 – VC 23224, and
- DUI of alcohol – VC 23152a.
4.1. Driving in possession of alcohol or marijuana – VC 23222
Per Vehicle Code 23222, driving in possession of alcohol or marijuana is the offense where people operate a motor vehicle while in possession of an open container of alcohol or marijuana.
Note that if a person possesses alcohol or marijuana while driving and then drinks or smokes it, a prosecutor can then charge the party with a violation of both:
- Vehicle Code 23222, and
- Vehicle Code 23221.
4.2. Possession of alcohol in a vehicle by a person under 21 – VC 23224
Per Vehicle Code 23224, people are guilty of an offense if they are:
- under the age of 21, and
- drive a motor vehicle containing an alcoholic beverage or possess an alcoholic beverage while riding in a motor vehicle.
Unlike a violation of VC 23221, underage drivers can be guilty of this offense by simply driving a motor vehicle that contains alcohol, even if it is unopened in a trunk.
4.3. DUI of alcohol – VC 23152a
Under Vehicle Code 23152a, driving under the influence is the crime where people operate a motor vehicle while under the influence of alcohol.
Motorists who display signs and symptoms of intoxication can be charged with this DUI section even if there is no evidence that their blood alcohol concentration (BAC) measures above the legal limit of .08%. The focus is on whether a driver shows signs of intoxication.
California law treats a violation of this law more seriously than a violation of VC 23221.
A DUI conviction under this law can result in the following penalties:
- up to six months in county jail,
- a driver’s license suspension by the DMV,
- a fine of up to $1,000, and
- three to five years of misdemeanor probation.
For additional help…
For additional guidance or to discuss your case with a criminal defense lawyer/DUI attorney, we invite you to contact our law firm at the Shouse Law Group. Our attorneys provide both free consultations and legal advice you can trust.
Our attorneys also represent clients throughout California State, including those in Los Angeles, Los Angeles County, and Riverside.
- California Vehicle Code 23221 VC.
- California Vehicle Code 23229 VC.
- See same.
- California Vehicle Code 360 VC.
- California Vehicle Code 23224 VC.
- See same.