Ask a Weed Lawyer: Smoking Weed in Your Car

Rule of thumb? Weed and wheels don't mix.

John Bussman is a criminal defense attorney in Orange County, California. He is an expert on marijuana law, a member of the NORML Legal Committee, and a longtime supporter of drug policy reform.

Q: If I’m pulled over and weed has been smoked in the car recently, what should I do?

If you are caught driving a car that smells like marijuana in California, you could be charged with a couple of different crimes. “DUID” (driving under the influence of drugs), and “smoking medical marijuana in a vehicle” are the most likely.

Being a “qualified patient” or a “medical marijuana card holder” are not defenses to these charges. I always use the example of alcohol: just because you’re allowed to possess alcohol (because you’re over 21) does not mean that you may consume it while driving or that you may drive while impaired.

The best advice that I have if you’re pulled over in a car that smells like marijuana is to POLITELY KEEP YOUR MOUTH SHUT. 

If you are stopped on suspicion of DUID in California, you have no legal obligation to perform field sobriety tests or to answer any questions. You should politely refuse to participate. Nothing good will come from voluntarily submitting to any unfair “sobriety tests." If you are arrested, though, you must provide a blood sample at the jail. If you refuse to do so, your driver’s license will automatically be suspended for at least one year.

To be convicted of DUID in California, the prosecutor must prove that you were so stoned that you could not safely operate a motor vehicle. Unlike alcohol, there is currently no legal limit to define exactly how stoned is too stoned. This means that the entire case will probably depend on the arresting officer’s subjective observations and impressions. The cop will take the witness stand and (with a straight face) he’ll tell the jury, “Based on my training and experience, I just know that the defendant was dangerously impaired. Trust me.”

Smoking marijuana in a vehicle is a separate and distinct offense from DUID—at least the DA will treat it that way. To use the alcohol analogy again, think of these two crimes as driving while drunk vs. driving with an open container. They’re related, but don’t confuse them.

In these types of cases, the most damning evidence the police can gather is often the defendant’s confession. Too many of my clients talk themselves into trouble by answering questions (“Yes, officer, I was just smoking a second ago, but I have a valid medical marijuana card”) and by voluntarily participating in field sobriety tests. Remember, if your case ends up in front of a jury, the police officer will testify about all the things that he observed. All of those observations will be bad (“the subject seemed disoriented and had difficulty following instructions,” etc.). Don’t give him anything to talk about. The best advice that I have if you’re pulled over in a car that smells like marijuana is to politely keep your mouth shut.

But won't that look suspicious? 

I’m not afraid of looking suspicious. It’s not a crime to look suspicious. I probably look suspicious most of the time. I’m afraid of my clients talking themselves into trouble and providing evidence that the prosecutor will use in court.