Searches, transportation, open container infraction

California Health and Safety Code 11362.1.

(c) “Marijuana and marijuana products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.”

HSC 11362.3.

(a) Nothing in Section 11362.1 shall be construed to permit any person to:

(4) Possess an open container or open package of marijuana or marijuana 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.”

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) [cannabis open container law]

(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.

HSC 11360.  

(a) Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any cannabis shall be punished as follows:

(1) Persons under the age of 18 years shall be punished in the same manner as provided in paragraph (1) of subdivision (b) of Section 11357.
(2) Persons 18 years of age or over shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment.
(3) Notwithstanding paragraph (2), a person 18 years of age or over may be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of two, three, or four years if:

(A) The person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code;
(B) The person has two or more prior convictions under paragraph (2);
(C) The offense involved the knowing sale, attempted sale, or the knowing offer to sell, furnish, administer, or give away cannabis to a person under the age of 18 years; or
(D) The offense involved the import, offer to import, or attempted import into this state, or the transport for sale, offer to transport for sale, or attempted transport for sale out of this state, of more than 28.5 grams of cannabis or more than four grams of concentrated cannabis.

(b) Except as authorized by law, every person who gives away, offers to give away, transports, offers to transport, or attempts to transport not more than 28.5 grams of cannabis, other than concentrated cannabis, is guilty of an infraction and shall be punished by a fine of not more than one hundred dollars ($100). In any case in which a person is arrested for a violation of this subdivision and does not demand to be taken before a magistrate, that person shall be released by the arresting officer upon presentation of satisfactory evidence of identity and giving his or her written promise to appear in court, as provided in Section 853.6 of the Penal Code, and shall not be subjected to booking.

(c) For purposes of this section, “transport” means to transport for sale.

(d) This section does not preclude or limit prosecution for any aiding and abetting or conspiracy offenses.

2 thoughts on “Searches, transportation, open container infraction”

  1. I have been a medical cannabis advocate/activist and medicine maker for a long time.
    The small farmer and medicine maker has been shut out of the “new industry”.
    We are now lumped in with the, environmental rapist/trespass grows and dangerous/ burn down the neighborhood, home shops. The “Black Market”. Simply because we have been regulated out of legal existence.
    The government was unsuccessful at stopping us during prohibition. They are doing just fine now that it’s “legal”.
    I’m talking about the small operators that want to stay small.
    The ones that were the pioneers.
    The legacy farmers and operators.
    The medicine makers.
    AND the ones that want to continue their legacy.

    Adult use regulations in California (MAUCURSA) have reduced patients to tears at dispensaries after the July 1st massacare!!!

    I would like the moderator of this website to contact me.

    1. You’re right about the over taxation and over regulation that have occurred since the legislature voted to end the collectives in 2015, Paul. Beginning on January 9, the patient-to-patient sales “collective defense” will no longer exist in California. What you have left is Prop. 215 / HSC 11362.5, the Mower and Kelly court decisions, the HSC 11362.7(a) presumptive safe harbor of 8 ounces (at least if you are taking it home, per case law) and 6-12 plants and HSC 11362.765 adds a defense against charges of sales, transportation, intent to sell or sales. Those charges can be filed as misdemeanors or, in some specific cases, as felonies. Those statutes all give you a court defense but Prop 64 allows adults age 21 and up to carry an ounce of herb and 8 grams of concentrate in any direction and to grow up to six plants at home but allows localities to limit grows to enclosed spaces. Otherwise you need a license to grow or sell commercially, and localities have been brutal in putting people out of business. That’s the crux of the problem, localities not licensing retail outlets and state agencies over regulating production.

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