Vehicle Code § 23221 VC – Drinking Alcohol or Smoking Marijuana in a Motor Vehicle

Vehicle Code § 23221 VC prohibits the consumption of alcohol or marijuana in a motor vehicle that is being driven on a California highway. You commit this offense if, while driving or riding as a passenger, you drink alcohol or ingest any marijuana product.

A violation of this code section is an infraction punishable by a fine of $250.00.

VC 23221 is one of California’s “open container laws” (Vehicle Code Sections 23221 – 23229 VC).

The language of the code section reads:

23221. (a) A driver shall not drink any alcoholic beverage or smoke or ingest marijuana or any marijuana product while driving a motor vehicle upon a highway.

(b) A passenger shall not drink any alcoholic beverage or smoke or ingest marijuana or any marijuana product while in a motor vehicle being driven upon a highway.

(c) A violation of this section shall be punished as an infraction.

Examples

• driving a car down a highway while drinking a beer.
• riding in the back of a vehicle and smoking marijuana.
• riding in a camper or housecar and drinking alcohol.

Defenses

People accused of an offense under this statute can challenge the accusation with a legal defense. A few common defenses include defendants showing that they were:

• falsely accused,
• not on a public highway, and/or
• a passenger in a for-hire vehicle.

Penalties

A violation of California Vehicle Code Section 23221 is an infraction (as opposed to a California misdemeanor or a felony).

The offense is punishable by a $250 fine.

Our California criminal defense attorneys will explain the following in this article:

• 1. Is it illegal to consume alcohol or marijuana in a motor vehicle?
• 2. Are there legal defenses to VC 23221 charges?
  • 2.1 Falsely accused
  • 2.2 No public highway
  • 2.3 Passenger in a for-hire vehicle
• 3. What are the penalties?
• 4. Are there related offenses?
  • 4.1 Driving in possession of alcohol or marijuana – VC 23222
  • 4.2 Possession of alcohol in a vehicle by a person under 21 – VC 23224
  • 4.3 California DUI of alcohol – VC 23152a

1. Is it illegal to consume alcohol or marijuana in a motor vehicle?

People can violate California Vehicle Code 23221 in one of two ways. These are by:

1. drinking any alcoholic beverage or smoking marijuana or any marijuana product while driving a motor vehicle on a highway, or
2. drinking any alcoholic beverage or smoking marijuana or any marijuana product while riding as a passenger in a motor vehicle being driven upon a highway.¹

A “motor vehicle” means any vehicle that is self-propelled.²

Note, though, that this statute does not apply to passengers riding in motor vehicles that carry people for hire. Examples of these types of vehicles include:

• party buses,
• rented limousines, and
• taxis.³

A “highway,” for purposes of this statute, means any public road or other place that is publicly maintained and open to the public for purposes of vehicular travel.⁴

2. Are there legal defenses to VC 23221 charges?

Traffic offense lawyers draw upon several legal strategies to help clients contest charges under this law. Three common ones include showing that:

1. a defendant was falsely accused.
2. a defendant was no on a public highway.
3. an accused was a passenger in a for-hire vehicle.

2.1. Falsely accused

Unfortunately, people get falsely accused of this offense all of the time. The main reason is that police officers often mistakenly believe that a driver or passenger is consuming an alcoholic beverage or smoking marijuana. Therefore, a common defense is for an accused to show that he/she was unjustly blamed.

2.2. No public highway

Recall that people are only guilty of this offense if they are driving on a public highway or riding as a passenger in a car that is being driven down a public highway. Further, “public highway” has a precise definition under California law. This means it is always a defense for a person to show that they were not in a car that was on such a road. Perhaps, for example, they were in a car on a private driveway.

2.3. Passenger in a for-hire vehicle

Recall too, that this statute does not apply to passengers riding in a for-hire vehicle. A defense, then, is for a defendant passenger to show that they were in this type of auto.

3. What are the penalties?

A violation of this section is an infraction.

The offense is punishable by a fine of $250. A defendant will not face the possibility of county jail time or state prison time.

Note that people under 21 years of age can face harsher penalties under Vehicle Code 23224. This law makes it a misdemeanor offense for any person under 21 to drive a car, or ride in one, while drinking an alcoholic beverage.⁵

A violation of this law is punishable by:

• six months in county, and/or
• a maximum fine of $1,000.⁶

4. Are there related offenses?

There are three offenses related to drinking alcohol/smoking marijuana in a motor vehicle. These are:

1. driving in possession of alcohol or marijuana – VC 23222,
2. possession of alcohol in a vehicle by a person under 21 – VC 23224, and
3. DUI of alcohol – VC 23152a.

4.1. Driving in possession of alcohol or marijuana – VC 23222

Per Vehicle Code 23222 VC, driving in possession of alcohol or marijuana is the offense where people operate a motor vehicle while in possession of an open container of alcohol or marijuana.

Note that if a person possesses alcohol or marijuana while driving and then drinks or smokes it, a prosecutor can then charge the party with a violation of both:

1. Vehicle Code 23222, and
2. Vehicle Code 23221.

4.2. Possession of alcohol in a vehicle by a person under 21 – VC 23224

Per Vehicle Code 23224, people are guilty of an offense if they are:

1. under the age of 21, and
2. drive a motor vehicle containing an alcoholic beverage or possess an alcoholic beverage while riding in a motor vehicle.

Unlike a violation of VC 23221, underage drivers can be guilty of this offense by simply driving a motor vehicle that contains alcohol, even if it is unopened in a trunk.

4.3. DUI of alcohol – VC 23152a

Under Vehicle Code 23152a VC, driving under the influence is the crime where people operate a motor vehicle while under the influence of alcohol.

Motorists who display signs and symptoms of intoxication can be charged with this DUI section even if there is no evidence that their blood alcohol concentration (BAC) measures above the legal limit of .08%. The focus is on whether a driver shows signs of intoxication.

California law treats a violation of this law more seriously than a violation of VC 23221.

A DUI conviction under this law can result in the following penalties:

• up to six months in county jail,
• a driver’s license suspension by the DMV,
• a fine of up to $1,000, and
• three to five years of misdemeanor probation.

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