CannaLaw: Marijuana Transportation DUI Arrest Prevention

By Bruce Margolin, Esq.

Many good people end up facing criminal charges as the result of transporting marijuana. Even though transportation of marijuana by patients and their caregivers is legal in California, the amount must be consistent with the patient’s current medical needs.

Non patients who transport more than an ounce are in violation of California Health and Safety Code §11360(a) and face a felony, punishable up to four years. Transportation, however, of under an ounce of marijuana (other than hash) is an infraction with a maximum penalty of only a $100 fine plus penalty assessments, and no arrest, with proper ID. However, if you are convicted and are under 21, you will lose your license for a year.

For more information, go to 420LAWS.COM, where you will find The Margolin Guide to State and Federal Marijuana Laws, for ways to avoid conviction and a lot more information about almost every other aspect of the laws, including the 2016 AB 266, etc. licensing laws. Be aware that individuals, including patients, who have their stash in multiple baggies, cash, a scale, or other items associated with sales, may be charged with possession for sales under Health and Safety Code §11359, a felony punishable up to three years.

Even though Senate Bill 420 (Health and Safety Code §11362.7) provides that patients are protected from arrest and seizure of up to eight ounces of their medication, the permissible amount transported is limited to the patient’s current medical needs. For example, in People v. Wayman, (2010) 189 Cal.App.4th 215,  the defendant’s conviction was upheld because he testified that he stored his medical marijuana in the car because his mother didn’t like it in the house. The court, however, went on to say that had he been going on an extensive trip the four ounces might have been reasonably necessary for his current medical needs.

The most common arrests are in vehicles, so avoid traveling with your medication as much as possible and, again, do not have it in multiple containers (baggies /canisters). The best way to avoid getting busted is to avoid the police smelling it, as the smell is probable cause to search without a warrant when in a vehicle. Additionally, when going into or or out of a dispensary, do not carry a large container such as a backpack, because the police watch for those who may be transporting large quantities. The best place to keep your medication is in the trunk in a tightly closed container. Be careful not to use marijuana close in time before driving so that you do not smell of it. Otherwise, the potential for being investigated for driving under the influence of marijuana becomes more likely.

As I understand, the number of marijuana DUI busts has greatly increased because of an infusion of money for prosecution from the federal government. If detained for DUI, you are not required to submit to field sobriety tests (i.e., walk the line, tilt back with eyes closed and touch your nose, with eyes closed count 30 seconds, etc.). Those test results are often the basis for making arrests and prosecution. Try taking them on your own to see how difficult they are even at home, let alone on the street under the threat of arrest.

It is very important to know that if you refuse to take either a blood or urine test when requested by the officer, you will face the loss of your driver’s license for six months per the rules of the Department of Motor Vehicles. My free app (420LAWS) has more about all the marijuana laws and a panic button that orally explains what you may want to consider doing if detained for a DUI investigation.

Note that the police can and often do ignore a doctor’s marijuana letter and, therefore, we recommend that patients obtain a county health department-issued ID card. They cost about $150.00, but they do provide greater protection. First of all, and most importantly, the cards are not subject to being ignored by the police.

The Compassionate Use Act (Prop. 215 of 1996) did not specify that transportation was included in the protected acts—only growing and possessing. In 1997, the Court of Appeals in People v. Trippet, (1997) 56 Ca.App.4th, 634, held that transportation was implied by the law but cautioned that the “quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, must be reasonably related to the patient’s current medical needs.” Also see People v. Wright, (2006) 40 Cal. 4th, 1981.

When he was detained, Wright denied that he had any marijuana in the car, but the cop found numerous baggies totaling slightly more than a pound, a scale and no smoking devices. Wright was charged with possession for sale and transportation. His doctor testified that he approved self-regulation doses and that a pound every two or three months was consistent with his patient’s medical needs. The defendant testified that the marijuana was for his own medicinal use. The court held that the defendant was entitled to assert the medical defense and was not limited to any particular amount.

Also note that the Appellate court confirmed that patients are also protected from conviction on a charge of possession of marijuana in a vehicle (Vehicle Code 23222).

Bruce Margolin, Esq., has been a criminal defense attorney since 1967 and is based in West Hollywood. He has served as director of LA NORML since 1973 and helped write Proposition 215. Website: Telephone: 1-800-420-LAWS (5297).