Weed is legal in California…but driving impaired still isn’t.

Posted by on January 3, 2018 in #DUIdata, Uncategorized | 0 comments

Weed is legal in California…but driving impaired still isn’t.

Weed is legal in California…but driving impaired still isn’t.

I should add a “no duh” at the end of that sentence. But seriously, as of January 1, 2018 with Assembly Bill 64 (Prop 64) going through, adults in California can buy marijuana for recreational purposes…and with that, here are some thoughts as they relate to driving while or after smoking marijuana in California. Note, for the law uses cannabis and marijuana interchangeably.

First the laws:

You cannot have an “open container” of weed while driving:

California Vehicle Code 23222 is the “open container” law. You can’t drive with an open container of booze, and the law has been amended to include weed. So now you cannot drive a vehicle with an open container of cannabis or cannabis product, and obviously can’t drink alcohol and/or smoke weed while driving.

It’s not a misdemeanor, but it is an infraction  (traffic ticket). I put the entire California Vehicle Code section 23222 in full below.

Can you smoke weed outside?

You can’t smoke in public or within 1,000 feet of a school or daycare center when children are present. And I’m sure local governments/cities will create more laws about all of this.

You cannot be “under the influence” and driving:

It is against the law to be “under the influence” of either alcohol, weed, or alcohol + weed (per California Vehicle Code 23152).

Well, but how do we define “under the influence” per California law? Ooo, good question Eric. Thanks Eric [pats self on the back].

There is no legal limit for weed, like how we have a per se alcohol legal limit for alcohol of .08 (or .01 if you’re under 21 or on probation…or .04 if you have a commercial license and are driving commercially). But even though there is no legal limit for weed, you can still be convicted of being “under the influence.”

So, defining “under the influence”: California law (per the Jury Instruction CALCRIM 2110) defines being “under the influence” as no longer being “able to drive a vehicle with the same care and caution of a sober person, using ordinary care, given similar circumstances.”

Now, that’s an incredibly broad definition. And that’s why I do so many DUI trials…because it can be incredibly subjective. Everything turns on what evidence there is at trial, and how it’s presented and argued. So, with that, here are some things to consider:

Your rights and DUI drugs/DUI marijuana/DUI alcohol:

  1. You do NOT need to tell police that you smoked weed (or taken any kind of drug, or drank any kind of alcohol). You don’t have to answer any of those questions about if you smoked, what you smoked, when you smoked, how you smoked. None of that. And if you do, any decent cop will report it, and then any prosecutor with a heart beat and a brain will throw that into your face, because those statements are usually admissible as evidence against you at trial. The kicker? If you say something that is helpful, those statements probably will NOT come in as evidence in trial. There’s more to it…but that’s a discussion about Hearsay and the Laws of Evidence for another day.
  2. In line with #1, you don’t need to answer any questions at all actually. Usually these questions are: where are you coming  from, where are you going, what affects do you feel from the alcohol/weed? You have a duty to show the officer your ID. But you absolutely have no duty to give statements to arrest and convict you.
  3. You do NOT need to perform any field sobriety tests. This includes any balance tests, and any mouth swab or breath tests for marijuana (like what they’re trying for in Oakland) as long as you’re over 21 or/and not on DUI probation. Many times doing these tests before arrest just create more evidence against you.
  4. Do you need to give a blood test? Well, the Vehicle Code says you gave implied consent to give blood if investigated for a DUI. But we’re still waiting on the California Supremes to decide Arredondo (see my blog posts about Arredondo here, and some more recent case decisions here about this area of law). This is an unclear area of law for now, so just understand that if you refuse the blood test, at least in San Diego, Police will most likely get a warrant, take your blood anyway…and then if a refusal can be proven, you may suffer more punishment at either/both the DMV or Court levels.
  5. No, having a prescription is not per se a legal defense to being under the influence. It may be something to be argued…but I can’t assume a Prosecutor will dismiss the case just because you have a valid prescription for any kind of a drug.

Now, There are of course defenses to consider with any kind of criminal case like a DUI, but it all depends how the science and law play out.

Be safe out there. And maybe (hopefully) plan ahead before consuming any kind of alcohol or drug. Because good lawyers ain’t cheap.


California Vehicle Code 23222:

(a) No person shall have in his or her possession on his or her person, while driving a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle, containing any alcoholic beverage which has been opened, or a seal broken, or the contents of which have been partially removed.

(b) (1) Except as authorized by law, every person who has in his or her possession on his or her person, while driving a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, any receptacle containing any cannabis or cannabis products, as defined by Section 11018.1 of the Health and Safety Code, 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).

(2) Paragraph (1) does not apply to a person who has a receptacle containing cannabis or cannabis products that has been opened, has a seal broken, or the contents of which have been partially removed, or to a person who has loose cannabis flower not in a container, if the receptacle or loose cannabis flower not in a container is in the trunk of the vehicle.

(c) Subdivision (b) does not apply to a qualified patient or person with an identification card, as defined in Section 11362.7 of the Health and Safety Code, if both of the following apply:

(1) The person is carrying a current identification card or a physician’s recommendation.

(2) The cannabis or cannabis product is contained in a container or receptacle that is either sealed, resealed, or closed.


Per California Rules of Professional Conduct, although I try to simply make them informative and entertaining, some persons may take it as a legal solicitation.  It’s not, and it does not in any way form any kind of attorney-client relationship with whoever reads it.

Eric Ganci, Esq., DUI trial lawyer


Cell: 760-216-4941

Email: Eric@GanciEsq.com



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    Eric Ganci

    Eric Ganci practices in DUI defense, with a focus on science and trial work. He was awarded the “Lawyer-Scientist” designation by the American Chemical Society, Chemistry and the Law Section. Eric teaches with the Trial Lawyers College and is a founding member of the DUI Defense Lawyers Association.

    He earned his JD from Thomas Jefferson School of Law and his BA in Music Education from Northern Illinois University.
    Eric Ganci

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