Possession of Marijuana While Driving

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Definition of Possession of Marijuana While Driving

marijuana driving

California Vehicle Code Section 23222(b) prohibits possessing marijuana while driving.  This is a separate offense than simple Possession of Marijuana under California’s Health & Safety Code Section 11357(b).

Example: You are pulled over because you are driving in an erratic manner.  After conducting a search of your car, the cop finds marijuana in your lap.  Because you were driving while in possession of the substance, you can be charged with the offense.  If it is determined that you are driving under the influence of alcohol or drugs, you can also be convicted of a DUI offense pursuant to California Vehicle Code Section Vehicle Code Section 23152 (a) or vehicle code 23152(b).

How Does the Prosecutor Prove Possession of Marijuana While Driving?

To prove that you are guilty of this offense, a prosecutor has to prove the following facts or elements1:

  • You were in unlawful2 possession3 over marijuana4

Examples

Steve was driving with a zip lock of marijuana on her lap and was stopped for speeding.  A had just purchased the marijuana from a dealer friend and was planning on smoking it at home.  Steve can be charged with the offense because Steve knowingly had physical possession of and full control over the drug.

Example:

A and B struck a deal, wherein A agreed to buy marijuana from B.  A got in the car and was stopped for driving with a false registration sticker.  He was later identified as being from a gang that is known to engage in drug dealing transactions and was charged with possession while driving.  However, the agreement between A and B will not, alone, establish constructive possession of marijuana, because A has not exercised control over the substance and B could still refuse the sale or refuse to deliver.  However, the nature and terms of such purchase agreements are factors that the court will consider in determining whether the defendant has in fact exercised the requisite control over the drugs.

Example:

Defendant negotiated with an undercover officer to buy marijuana.  Finally they agreed that defendant would give his stamp collection in exchange for one pound of marijuana.  When the undercover officer and defendant met to make the exchange, the defendant pulled up in his car, and while his engine was running, stepped out of his car to make the exchange.  The officer opened the back hatch of his car and defendant placed the box of stamps in the back of the car.  The officer then took a one-pound bag of marijuana from the back of the car.  As he was about to remove it from the car in order to hand it to defendant, other officers at the scene moved in and arrested defendant.  Under these circumstances, the defendant cannot be charged either with simple possession of marijuana nor with possession while driving, because the defendant had not constructively possessed the marijuana.  The marijuana was still effectively in full control of the police officer.

  • While you were driving5
  • You knew that the substance you are carrying is a controlled substance6;
  • The marijuana you possessed weighed not more than one ounce.

How Can You Fight Possession of Marijuana While Driving?

The most common defenses that a skilled criminal defense attorney can explore to prove your innocence are as follows:

The marijuana did not belong to you: Because possession is one of the elements, if you can show that the marijuana did not belong to you and that you had no control over the substance, you are not guilty of this offense.

You are authorized to carry medical marijuana: As explained above, if you are authorized to carry medical marijuana, then you are not in “unlawful possession” of the substance, as is required for a conviction of this offense.  Therefore, if you can show that you have a medical license to carry the marijuana, you are not guilty of the offense even if you were driving while carrying the marijuana, because it is arguably the only way for you to transport the marijuana after acquiring it from a marijuana clinic.  However, you can still be charged with a DUI While Driving if you are caught smoking the marijuana while driving, because California’s DUI laws prohibit driving under the influence of drugs or alcohol pursuant to California Vehicle Code Sections 23152 (a) and (b)

The marijuana was discovered through an illegal search and seizure: The police in California are held to a strict set of rules when stopping you and searching you and/or your property without justification or probable cause, because such a stop and/or search may constitute an illegal search and seizure in violation of your constitutional rights.  If the police acted in a way to violate these rules, any evidence obtained during an illegal search or seizure can be excluded.  For example, if you were pulled over without any good reason, and the search of your car was motivated by factors unknown to you, but you suspect it was because of your race or national origin, then your criminal defense attorney will advocate for you to get the evidence excluded and the charges dropped on the grounds that the evidence was obtained illegally during an illegal search or seizure.

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Penalties & Punishment

An offender of Vehicle Code Section 23222 (b) may be facing the following penalties:

  • A fine of up to a $100
  • Court costs

Related Offenses and Enhancements

woman smoking marijuana joint

Possession of Marijuana under California’s Health & Safety Code Section 11357(b): This offense could also be charged in addition to possessing marijuana while driving if a defendant unlawfully possessed not more than 28.5 grams of marijuana, other than concentrated cannabis.  The penalty is the same as for Possession of Marijuana While Driving Under Vehicle Code Section 23222: an infraction punishable by a fine of not more than one hundred dollars $100 and court fees.

Transporting or Giving Away Marijuana: More Than 28.5 Grams: Pursuant to California’s Health & Safety Code Section 11360(a), a defendant who transports, imports into California, sells, furnishes, administers, or gives away, or offers to transport, import into California, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana in the amount of more than 28.5 grams can be punished by shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of two, three or four years. a defendant who gives away, offers to give away, transports, offers to transport, or attempts to transport 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.

Simple Possession of Marijuana: Under the Health & Safety Code Section 11357(c), anyone who unlawfully possesses more than 28.5 grams of marijuana, other than concentrated cannabis, shall be punished by a misdemeanor charge and imprisonment in a county jail for a period of not more than 6 months, or by a fine of not more than $500, or by both such fine and imprisonment.

Simple Possession of Marijuana on School Grounds: Under the Health & Safety Code Section 11357(d), anyone who is 18 years of age or older who possesses up to 28.5 grams of marijuana, other than concentrated cannabis, on the premises of a school, or within, any school providing instruction in kindergarten, or any of grades 1 through 12 during hours the school is open for classes or school-related programs, is guilty of a misdemeanor and will be punished by a fine of up to $500, or by imprisonment in a county jail for a period of not more than 10 days, or both.

Simple Possession of Concentrated Cannabis: Under the Health & Safety Code section 11357(a), anyone who unlawfully possesses any concentrated cannabis will be punished by imprisonment in the county jail for up to 1 year or by a fine of up to $500, or by both such fine and imprisonment, or shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.

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Footnotes

  1. Elements; California’s Vehicle Code Section 23222(b) – Possession of Marijuana or Open Container While Driving: “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. Possession of marijuana is lawful if authorized by the Compassionate  Possession Use Act.  In order for the Compassionate Use Act to apply, the defense must produce evidence tending to show that his/her possession or cultivation of marijuana was for personal medical purposes or as the primary caregiver of a patient with a medical need with a physician’s recommendation or approval.  Medical Marijuana. Health & Saf. Code, § 11362.5.  The amount of marijuana possessed must be reasonably related to the patient’s current medical needs.  Amount Must Be Reasonably Related to Patient’s Medical Needs. People v. Trippet (1997) 56 Cal.App.4th 1532, 1550–1551 [66 Cal.Rptr.2d 559].  Prosecution has the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess or cultivate marijuana for medical purposes.  If the prosecution has not met this burden, the defendant is not guilty of the offense.  Burden of Proof for Defense of Medical Use.  People v. Mower (2002) 28 Cal.4th 457, 460 [122 Cal.Rptr.2d 326, 49 P.3d 1067]; People v. Frazier (2005) 128 Cal.App.4th 807, 820–821].  A “primary caregiver” is someone who has consistently assumed responsibility for the housing, health, or safety of a patient who may legally possess or cultivate marijuana.  Primary Caregiver.  People v. Mentch (2008) 45 Cal.4th 274, 282–292 [85 Cal.Rptr.3d 480, 195 P.3d 1061]. []
  3. Two or more people may possess marijuana at the same time.  A person does not have to actually hold or touch the marijuana to possess it.  It is enough if the person has “control” over it or the right to control it, either personally or through another person.  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 or the right to control a thing, either directly or through another person or persons.  Constructive vs. Actual Possession: CALJIC No. 12.00 (1989 rev.); People v. Barnes (1997) 57 Cal.App.4th 552, 556 [67 Cal.Rptr.2d 162]. []
  4. In the context of this offense, “marijuana” does not include the substance in a concentrated form (i.e. hash).  Moreover, this offense only entails possession of marijuana in a small amount less than 1 ounce.  If you are in possession of large amounts of marijuana in your vehicle, you may be charged with California’s Health and Safety Code Section 11359 for Possession of Marijuana for Sale. []
  5. “Driving” means that the person who was in possession of marijuana had to have moved the car some distance. []
  6. A prosecutor does not need to prove that the defendant knew which specific controlled substance he/she possessed, only that he/she was aware of the substance’s presence and that it was a controlled substance.  Knowledge.  People v. Romero (1997) 55 Cal.App.4th 147, 151–153, 157, fn. 3 [64 Cal.Rptr.2d 16]; People v. Winston (1956) 46 Cal.2d 151, 158 [293 P.2d 40] []

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