Vehicle Code 23222 CVC – Driving While Possessing an Open Container of Alcohol or Marijuana

Vehicle Code 23222 VC is the California statute that makes it an offense for a driver to operate a motor vehicle while in possession of an open container of alcohol or marijuana. California law allows a driver to transport a closed container of alcohol or marijuana, or one that is still sealed. A violation of this section is an infraction punishable by a fine of $100 or more.

Note that officers often write this section as 23222 VC or 23222 CVC as shorthand for the California Vehicle Code.

The language of Vehicle Code 23222 states:

“(a) A person shall not have in their possession on their person, while driving a motor vehicle upon a highway or on lands…a bottle, can, or other receptacle, containing an alcoholic beverage which has been opened, or a seal broken, or the contents of which have been partially removed.

(b) a person who has in their possession on their person, while driving a motor vehicle upon a highway or on lands…a receptacle containing cannabis or cannabis products…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).”

Examples

• having an ounce of marijuana in a pocket while driving a car.
• driving a vehicle with an open bottle of beer in a cup holder.
• purchasing marijuana at a dispensary, breaking the seal on the container, and throwing it in the passenger seat.

Defenses

Criminal defense lawyers draw upon several legal strategies to help clients contest charges under this statute. A few common ones include lawyers showing that:

• a defendant was on a private road,
• an accused was authorized to possess marijuana, and/or
• a police officer stopped or arrested a defendant without probable cause.

Penalties

A violation of California Vehicle Code Section 23222 is an infraction (as opposed to a misdemeanor or a felony). The offense is punishable by a fine of $100 or more.

Our California criminal defense attorneys will highlight the following in this article:

• 1. What is prohibited by 23222 CVC?
• 2. Are there legal defenses?
  • 2.1. Private road
  • 2.2. Authorized to possess marijuana
  • 2.3. No probable cause
• 3. What are the penalties?
• 4. Are there related offenses?
  • 4.1. Drinking alcohol in a motor vehicle – VC 23221
  • 4.2. Possession of alcohol in a vehicle by a person under 21 – VC 23224
  • 4.3. DUI of alcohol – VC 23152a

1. What is prohibited by 23222 CVC?

VC 23222(a) is California’s law on alcohol and open container while driving. The statute makes it an offense for a person to:

1. drive a motor vehicle on a highway, and
2. do so while in possession of alcohol that is in an open bottle, can, or other container.¹

VC 23222(b) sets forth the law on the possession of marijuana while driving. The law makes it an offense for a person to:

1. drive a motor vehicle on a highway, and
2. do so while in possession of marijuana that is either in an open container or no container at all.²

For the purposes of this code section, a “highway” is a freeway as well as any other public road or street. The term does not include private roads.

As to possessing marijuana while driving, a person is not guilty of the offense if he/she is legally authorized to possess the drug (e.g., a qualified patient with a valid prescription).³

2. Are there legal defenses?

People charged under this law can challenge it with a legal defense. Three common defenses include accused people showing that they were:

1. driving on a private road.
2. authorized to possess marijuana.
3. stopped or arrested without probable cause.

2.1. Private road

Recall that this statute only applies to a person driving on a highway, which is essentially any public road. It does not apply to people driving on private roads. Therefore, a valid defense is for an accused to show that he/she was operating a vehicle on a private road.

2.2. Authorized to possess marijuana

Also recall that VC 23222b does not apply to people authorized to possess marijuana. This means a person can challenge a possession of marijuana charge by showing that he/she was allowed to possess the drug under the law. Perhaps, for example, a defendant had a valid medical marijuana card.

2.3. No probable cause

The Fourth Amendment to the U.S. Constitution says that law enforcement must have probable cause to lawfully stop or arrest a person of a crime. This means people can always assert the defense that law enforcement stopped or arrested them without a reasonable belief that they committed a crime.⁴

3. What are the penalties?

A violation of this code section is an infraction.

Driving while possessing an open container of alcohol is punishable by a fine of $250.

Driving while possessing an open container of marijuana is punishable by a fine of $100.

4. Are there related offenses?

There are three offenses related to driving while possessing an open container of alcohol or marijuana. These are:

1. drinking alcohol in a motor vehicle – VC 23221,
2. possession of alcohol in a vehicle by a person under 21 – VC 23224, and
3. DUI of alcohol – VC 23152a

4.1. Drinking alcohol in a motor vehicle – VC 23221

Per Vehicle Code 23221 VC, drinking alcohol in a motor vehicle is the offense where people drive a motor vehicle, or ride as a passenger in one, and drink alcohol or smoke marijuana or any marijuana product.

As with a violation of VC 23222, a violation of this law is an infraction. The offense is punishable by a fine of $250.

4.2. Possession of alcohol in a vehicle by a person under 21 – VC 23224

Per Vehicle Code 23224 VC, possession of alcohol in a vehicle by a person under 21 is the crime where:

1. someone under the age of 21 drives a motor vehicle, and
2. he/she does so while possessing an alcoholic beverage.

While VC 23222 applies to the possession of an open container of alcohol, this code section applies to both open and closed containers of alcohol.

4.3. DUI of alcohol – VC 23152a

Under Vehicle Code 23152(a) VC, DUI of alcohol is the crime where people operate a motor vehicle while under the influence of alcohol.

Note that 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 measures above the legal limit of .08%.

In comparison to violations of VC 23222, violations of this statute result in more severe penalties.

For example, a driver guilty of VC 23152a DUI can face:

• a misdemeanor charge,
• custody in county jail for up to six months,
• a drivers license suspension by the DMV for six months,
• DUI school ranging from 3 to 9 months,
• fines and penalty assessments totaling between $1,500 and $2,000, and
• installation of an ignition interlock device for six months.

For additional help…

For additional guidance or to discuss your case with a criminal defense lawyer or DUI lawyer, 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 lawyers also represent clients throughout California State, including those in Los Angeles, Orange County, and Sacramento.

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