Vehicle Code 23222 VC – Driving While Possessing an Open Container of Alcohol or Marijuana
California Vehicle Code 23222 VC is the statute making it an offense for someone to drive a motor vehicle while in possession of an open container of alcohol or marijuana.
Notably, however, the law allows a driver to transport a closed container of alcohol or marijuana or one that is still sealed. Violations of this law are an infraction punishable by a fine of $100 or more.
Since recreational marijuana was legalized in California, it's essential to understand the legal details associated with its use and when and how it's acceptable to possess it, especially in the context of driving.
VC 23222 says, “(a) A person shall not have in their possession on their person while driving a motor vehicle upon a highway or on lands, as described in subdivision (c) of Section 23220, 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) (1) Except as authorized by law, a person who has in their possession on their person, while driving a motor vehicle upon a highway or on lands, as described in subdivision (c) of Section 23220, a receptacle containing 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 $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 a 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 carries 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.”
What Does VC 23222 Prohibit?
California Vehicle Code 23222 is effectively the "open container" rule for alcohol and cannabis possession:
- Vehicle Code 23222(a) PC is the law prohibiting an open container of alcohol while driving. This means it's an offense for someone to drive a motor vehicle on a highway while in possession of alcohol that is in an open bottle, can, or another container.
- Vehicle Code 23222(b) VC is the law on the possession of marijuana while driving. The law makes it an offense for someone to drive a motor vehicle on a highway while in possession of marijuana that is either in an open container or no container.
A “container” can be a bag or bottle that either is unsealed or has its seal broken and contains marijuana buds, dried leaves, or other cannabis-based products.
It also includes containers that have been partially consumed and marijuana that is not in any sealed container at all, such as having a “joint” in your pocket. You can violate VC 23222(b) by possessing marijuana while driving under the following circumstances:
- Possess an ounce or less of marijuana while driving on a highway and
- You are not authorized by law to possess marijuana.
You are not guilty of this offense if you are legally authorized to possess marijuana, such as having a valid prescription. Further, you are also not culpable if you were transporting a closed container of marijuana or one that is still sealed. Under the law, a “highway” is a freeway and any other public road or street but does not include private roads.
What is an Open Container?
An "open container" in context is any receptacle that contains alcohol or marijuana and has been opened, or the seal broken, or any marijuana is partially removed.
It also includes any container of marijuana that is readily accessible to the driver or any passenger while the vehicle is in motion. Some examples of "open containers" include the following:
- A previously sealed bag of cannabis from a dispensary with the seal now broken,
- Cannabis edibles in an open package,
- A rolled joint kept in the pocket of the driver or a passenger,
- A bong with marijuana in it,
- An opened bottle, can, or another receptacle containing an alcoholic beverage.
What Are the Exceptions?
Vehicle Code 23222 VC has a couple of exceptions to the "open container" rule when it comes to alcohol or marijuana in a vehicle, such as the following:
- The container was in the trunk: If the open container of alcohol or marijuana is stored in the trunk of a car or otherwise stored to make it inaccessible to the driver or any passenger, no violation has occurred.
- Authorized by law: There is an exception for anyone authorized by law to possess marijuana. For example, VC 23222(c) says people who hold a valid medical marijuana card and it's stored in a container that has been sealed, re-sealed, or closed have not violated this law.
What Are Related Crimes?
Numerous California laws are related to Vehicle Code 23222(b) driving with an open container of marijuana, such as the following:
- Vehicle Code 23152(f) VC – DUI of drugs,
- Vehicle Code 23152(a) VC – DUI of alcohol,
- Vehicle Code 23222(a) VC – open container while driving,
- Vehicle Code 23221 VC – drinking alcohol in a motor vehicle when someone drives a motor vehicle, rides as a passenger, and drinks alcohol or smokes marijuana,
- Vehicle Code 23224 VC – possession of alcohol in a motor vehicle by someone under the age of 21,
- Health and Safety Code 11359(b) – marijuana sales under 18.
What Are the Penalties?
It's an infraction to drive with an open container of marijuana. For issues of open containers, the fine is $100, but you might violate other laws, such as the following:
- It's unlawful for minors under the age of 21 to possess marijuana in any quantity.
- If you possess over one ounce of marijuana without a valid medical marijuana ID.
- Being under the influence of marijuana driving is defined under VC 23152(f).
What Are Legal Defenses?
Suppose you are cited for violating the marijuana open container rule. In that case, you might be able to challenge the infraction for a dismissal.
Maybe we can argue that marijuana was not open or accessible. Perhaps it was sealed or in the trunk of your car. Maybe we can argue that there was a lack of knowledge. Perhaps you did not know you were in the presence of marijuana because another person in the car was carrying it without your knowledge.
Maybe you were driving on private property, as VC 23222 only applies on public roads and property. Perhaps we can argue there was an unlawful vehicle search by law enforcement.
Suppose the marijuana was discovered during a vehicle search without probable cause. In that case, the evidence could be inadmissible, and the case could be dismissed. You can contact us for a free case evaluation and to discuss legal options. Cron, Israels & Stark has offices in Los Angeles, CA.
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