Thursday, September 10, 2015

HS 11362.79: Smoking Medical Marijuana in a Vehicle

As I've previously written on this blog, California laws provide some limited protections for patients who use medical marijuana with a doctor's approval or recommendation.  Generally,  patients and their caregivers may cultivate enough marijuana for their own personal use.  They may possess, transport and consume marijuana, even in some public places.  Under some circumstances, they may even sell it to other qualified patients.

Keep in mind, however, that you will be arrested if you are caught smoking medical marijuana in a vehicle that is being operated.  Similarly, you may not operate a vehicle while you are impaired by marijuana, even if you have a doctor's recommendation to possess and use the drug for medical purposes.

More information on marijuana DUI cases available here.

Sections 11362 et seq. of the California Health & Safety Code outline the various protections that are afforded to qualified medical marijuana patients.  It also defines the limits of those protections. Some of the nuances pertain to operating motor vehicles.

Section 11362.79 specifically says that, "Nothing in this article shall authorize a qualified patient...to engage in the smoking of medical marijuana...while in a motor vehicle that is being operated."

The code section includes awkward wording that essentially means, "these laws should not be interpreted as guaranteeing the right to consume medical marijuana in a vehicle."  That part is clear. Here's the rub: there is no law that specifically prohibits smoking marijuana in a vehicle.

If you are caught smoking medical marijuana in a vehicle, the DA will charge you with at least 2 crimes: 1) VC 23152(f) Driving Under the Influence of Marijuana, and 2) HS 11362.79(d) Smoking medical marijuana in a vehicle.  I do not believe that this second charge is proper.  Here's my reasoning:

HS 11362.79(d) says that the law does not specifically create the right to smoke medical marijuana in a vehicle, but it also does not specifically prohibit that act.  That section does not indicate the penalty for its violation.  It doesn't even indicate whether the act of smoking in a vehicle is an infraction or a misdemeanor.

Since this code section includes the phrase "medical marijuana", it only applies to qualified patients and not to people who smoke non-medical marijuana in a moving vehicle. That's obviously absurd because the legislature did not intent to treat medical marijuana patients more harshly than non-patients who smoke marijuana in the car.

For these reasons, I do not believe that it's appropriate to treat violations of HS 11362.79(d) as misdemeanors.  I understand that the District Attorney's office disagrees with me. They will continue to file misdemeanor charges in these types of cases until we get some better guidance from appellate courts.

In the meantime, our office is prepared to fight criminal charges involving marijuana in vehicles. We have extensive experience with marijuana DUI cases (sometimes called "DUID", or "VC 23152(f)").  We're also experts in the areas of search & seizure law, medical defenses, and police misconduct.

If you or a loved one is accused of a crime involving marijuana in a vehicle, call us for a free consultation.  (714) 505-2468.  Ask for John.

Thanks for reading.

Orange County Marijuana Lawyer