You almost invariably learn something new from the published opinions of the Appellate Division of the Superior Court.
Maybe everyone else already knows this, but from this opinion, I learned that just like there's an "open container" law for alcohol (i.e., there can't be an open container of alcohol anywhere inside a vehicle that's being driven), so too is there a somewhat analogous "open container" law for cannabis.
Section 11362.3 of the Health and Safety Code says that it's not okay to "[p]ossess an open container or open package of cannabis or cannabis products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation" and Section 23222 of the Vehicle Code provides that "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)."
These provisions seem in desperate need of a Legislative rework, I think.
There are separate statutory provisions that deal with driving while under the influence of drugs (prohibited) and consuming marijuana while driving (also prohibited) with which I have no real quarrel. You shouldn't be driving while stoned or getting stoned while driving, as the former is dangerous and the latter leads to the former.
Section 23222 of the Vehicle Code seems the one most enforced in practice. This is perhaps not surprising, since Section 11362.3 is an exception -- really, a statement of non-exception -- and it's driving with marijuana that gets most of the attention anyway (as opposed to boating, flying, etc.). Apparently, as this opinion published today reflects, it's the view of many police officers that the Vehicle Code prohibits you from possessing any marijuana in a vehicle unless it's in its original, factory-sealed packaging; e.g., the opinion's reference to "Officer Jones’s belief that any cannabis being
transported in a vehicle must be in a heat-sealed container."
You can see why the police might so read Section 23222. Section (b)(1) does indeed say that it's an infraction to be driving with "a receptacle containing cannabis or cannabis products . . . which has been opened or has a seal broken." So if it's "open" or has a "seal broken," it's not okay. Which may perhaps means that you've got to have the original sealing.
But two things. First, on that point, the statute's potentially inconsistent. It first says that you can't have a "receptacle" that "contains cannabis" that "has been opened." But then immediately thereafter the statute reads "or lose cannabis flower not in a container." Here, there was "loose cannabis" -- i.e., "flower" or "bud" (in the stoner lingo) -- contained in an flexible plastic packaging that you open by squeezing. Obviously, that "receptacle" (the plastic) has been opened, since that's how the bud got in there in the first place, as well as how you take it out (by squeezing), so under the first prong, there is an apparent violation. But the Appellate Division says since it's "bud" (i.e., "flower"), it's also "loose cannabis," which the statute prohibits only if it's "not in a container." But since here, there's a plastic container, it's not illegal. Which is why the defendant here gets off.
Upon reflection, I'm not actually confident that the statute means what the Appellate Division thinks it means. Footnote 2 of the opinion says: "Although the rationale is unclear to this court, Proposition 64 differentiates cannabis, which must be in an
unopened, sealed, container, from 'loose cannabis flower,' which only needs to be in a closed container." The reason that rationale is unclear is because, I think, that's not what how the statute actually reads. (Supported by the fact that, yeah, if that's what it said, it'd be silly, as well as indeterminate, since it's unclear what the difference between "cannabis" and "loose cannabis" entails, since they're both cannabis.)
What the statute instead says, I think, is as follows:
(1) Cannabis that's contained in a receptacle has to be in a sealed receptacle. Most cannabis is indeed held in a receptacle. A bottle. A box. A baggie. If it's in a receptacle, then that receptacle must be sealed. To use the words of the statute: it's an infraction when "a person [] 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." Get it?
(2) By contrast, cannabis that's not contained in receptacle is prohibited while driving. Period. Cannabis that's not in a receptacle is described in the statute as "loose flower cannabis." If it's not in a receptacle, it's just sitting there. On the console. On your dashboard. On your lap. Wherever. The statute simply says that's not allowed. In the relevant words of the statute: "a person who has in their possession on their person, while driving a motor vehicle upon a highway or on lands . . . loose cannabis flower not in a container, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100)." Get it?
That's why the statute has an "or". You're liable (1) if your cannabis is in a receptacle that's been opened, or (2) if your cannabis is not in a receptacle. The more I think about it, the more I'm convinced that the Appellate Division just read the statute incorrectly. Which, by the way, means that the result here should likely go the other way. And that everyone who drives should know that you're not allowed to have marijuana in your vehicle unless it's in an unopened container (e.g., sealed).
Could the statute be worded better? Absolutely. So that's one change I'd make. At a minimum, to make it clearer. So we don't have confusion of the type expressed here. When three smart judges, trained in the law, are potentially confused, how can you expect the average person -- much less the average stoner -- to figure it out?
While the Legislature's at it, it should probably change the statute entirely.
Two points in this regard. First, the statute's hopelessly outdated. Paragraph (b)(1) contains the prohibitions that I've discussed up to now. Basically saying that you can't have "open" weed in your car (e.g., in an unsealed container or out in the open). Paragraph (b)(2) then says that (b)(1) doesn't apply if the marijuana's in your trunk, which makes sense. But then paragraph (c) goes ahead and says that paragraph (b) -- which contains the underlying prohibition -- doesn't apply at all "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."
That perhaps made sense in the old days, when it was only legal to have "medical" marijuana, and so people obtained identification cards, physician recommendations, etc. But nowadays, since it's okay to have recreational marijuana, there's basically no point to that anymore. So given the contours of the existing law, it makes little sense to say that it's okay to drive with weed in a closed container (paragraph (c)) if you've got a scrip from a doctor, but not okay to do so if you don't have a scrip (paragraph (b)). The dangers (and potential) of driving while stoned are the same in both cases. And since it doesn't get you much these days to have a scrip, we shouldn't expect people to have it in any event. Hence making the exception meaningless, irrelevant, and irrational.
The rule should be the same for everyone. Either it's (1) okay to have weed while you're driving (open or not), or (2) everyone needs to have it in a closed container, or (3) everyone needs to have it in a sealed container. Pick one of these rules and write the statute that way. Unlike the current one.
And, while we're at it, let's pick the rule that makes the most sense.
"Open container" laws for alcohol, in my view, are only loosely analogous to "open container" laws for marijuana. We shouldn't do (or expect) the same for both. It makes sense (IMHO) to say that you can't have an open bottle of beer, or cup full of vodka, while you're driving. That stuff spills. That stuff goes bad. The only (or at least likely) reason you have the thing open while driving is because you're going to drink it on the road. Otherwise you'd have just kept the top on the bottle, or waited to pour once you got to where you're going. We don't want to limit our ability to pull you over to only those circumstances in which we physically see you take a swig from the thing. We know that you are likely to drink from the container in your car because (1) you've got an open container there, and (2) there's little reason to have an open container of alcohol (given spillage and spoilage risks) other than your desire to drink and drive.
But those same principles simply don't apply to driving and marijuana.
Weed doesn't spill or go bad in the same way as alcohol. And you typically carry marijuana in an open (or openable) baggie, pill bottle or other receptacle in your vehicle not because you're planning to smoke it immediately and in the car, but rather because you're transporting it, and that's the way it's generally packaged. You're taking it home, or taking it to a party, or taking it to a park, or taking it to a friend's house. Most likely, yes, this is not the first time you've used your stash, so even if the bottle or baggie or whatever was originally sealed (and, in fact, that's uncommon anyway), it's not sealed any longer. But that doesn't mean you're about to use it in the car. A pill bottle half-full of cannabis is much more analogous to an unopened bottle of beer. Sure, you're going to eventually use it. But probably not right now. Which is why it makes sense to have a prohibition on open containers of beer but not open containers of marijuana. Different rules are appropriate given what we know about the purpose and typicality of open (or openable) containers of the various substances.
I can imagine situations that might be different. For example, if a driver's carrying a bong in his right hand while driving, and the bong's already been packed with weed, well, yeah, maybe I could see an argument that such a setting demonstrates a real probability of use while driving. Mind you, others might want there to be some further step -- like lighting the thing or whatnot -- since I'm certain lots of people transport their bongs either loaded or residually loaded. Regardless, for the most common situation -- a container partially full of weed, previously opened -- there's simply not the typical risk of use while driving that justifies essentially a complete prohibition on transport (i.e., the requirement of a previously-unopened container).
So it seems to me that a rational Legislature might decide to say either (1) that, given what we know about people transport and consume cannabis as opposed to alcohol, we're okay with people having open containers (e.g., baggies) of cannabis in their car, or, if you want to be as strict as possible, (2) tell people that they've got to close their pill bottle or tie their baggie or whatever once they get in the car (which is basically what the statute requires now for people with a doctor's note).
That's what makes sense to me. Either of which would be infinitely preferable to the (confusing and unsound) statute as it exists today.
