In Colorado, using marijuana or having an open container of marijuana in a motor vehicle is a traffic infraction under CRS 42-4-1305.5. There are limited exceptions where an individual can use or possess an open container of marijuana in a motor vehicle. However, under no circumstance is the driver allowed to operate under the vehicle under the influence of marijuana, which could result in criminal charges.

In this article, our Denver Colorado criminal defense lawyers will address:

• 1. What is driving with an open container of marijuana in Colorado?
• 2. What are the exceptions to the open marijuana container law?
• 3. How does the prosecutor prove I am guilty of possession of an open container of marijuana?
• 4. What are the penalties for an open container of marijuana?
• 5. Related Offenses
  • 5.1, C.R.S. CRS 42–4–1305 Open Alcoholic Beverage Container in a Motor Vehicle
  • 5.2, C.R.S. 18-13-122 Minor in Possession of Marijuana
  • 5.3, C.R.S. 42-4-1301 Driving Under the Influence of Marijuana

1. What is driving with an open container of marijuana in Colorado?

Under CRS 42-4-1305.5, it is a violation for a person in the passenger area of a motor vehicle on a public highway to knowingly consume marijuana or have an open marijuana container in their possession. Colorado’s laws regarding driving with an open container of marijuana mirror those for driving with an open container of alcohol.¹

An “open marijuana container” has a broad definition under Colorado law. Specifically, it is defined as, “a receptacle or marijuana accessory that contains any amount of marijuana, and:

1. That is open or has a broken seal;
2. The contents of which are partially removed; and
3. There is evidence that marijuana has been consumed within the motor vehicle.”²

This may include the packaging container provided when purchasing marijuana in a dispensary or shop, or personal containers such as a plastic baggie, or plastic canister. It also includes devices used to smoke marijuana, such as a bong or pipe. However, there must also be evidence that marijuana was consumed with the vehicle. A container alone may not be enough to be considered a traffic infraction.

2. What are the exceptions to the open marijuana container law?

There are a number of exceptions to the open marijuana container laws. Specifically, the penalties do not apply to:

• Passengers in a vehicle used for transportation for compensation, such as a taxi or bus;
• Possession in the living quarters of a motor home, house coach, or house trailer; or
• Contained in an area behind the rear seat or area not normally occupied by a passenger or vehicle not equipped with a trunk, such as a pickup truck.

3. How does the prosecutor prove I am guilty of possession of an open container of marijuana?

Possession of an open container of marijuana is not a criminal offense in Colorado. Instead, it is a traffic infraction, punishable by a simple fine. A traffic infraction has a lower burden of proof compared to a criminal conviction. The prosecutor only has to prove that you are guilty by a preponderance of the evidence. In order for the prosecutor to prove you violated the law against possession of an open container of marijuana, they have to prove that you were:

1. In the passenger area of a motor vehicle;
2. On a public highway or the right-of-way of a public highway of Colorado;
3. Used or consumed marijuana; or
4. Had in your possession an open marijuana container.

4. What are the penalties for an open container of marijuana?

A person who violates CRS 42-4-1305.5, driving with an open marijuana container, commits a class A traffic infraction. The penalties include a fine of $50 and a surcharge of $7.80.³

However, it is important to understand that using marijuana or having an open container in a vehicle can lead to other problems. Even if the driver is not using marijuana, smoking marijuana in their presence can result in the driver falling under the influence. A chemical test could show the driver had marijuana in their system, leading to a possible drug DUI.

5. Related Offenses

Driving with an open container of marijuana may be related to other traffic violations or criminal offenses. If marijuana is possessed by a minor, they may get a ticket even if they were not consuming marijuana inside the vehicle. Driving with an open container of alcohol can result in a similar infraction. If the driver is suspected of operating while under the influence of marijuana, they may be arrested for a DUI and lose their license.

5.1, C.R.S. 42–4–1305 Open Alcoholic Beverage Container in a Motor Vehicle

Under CRS 42-4-1305, using alcohol or having an open container of alcohol in one’s possession while in a motor vehicle is a traffic infraction. Unlike the rule against an open container of marijuana, there is no requirement that there is evidence alcohol was consumed within the vehicle. Simply having an open container may be evidence of a violation. The penalties for having an open container include a fine of $50 and a surcharge of $16.

5.2, C.R.S. 18-13-122 Minor in Possession of Marijuana

In Colorado, it is a petty offense for anyone under 21 to possess or consume marijuana or possess marijuana paraphernalia. A first offense can result in a fine of up to $100, surcharge of $25, and a state-approved substance abuse education program. Subsequent offenses can result in increased penalties.

5.3, C.R.S. 42-4-1301 Driving Under the Influence of Marijuana

Operating a motor vehicle while impaired by alcohol or drugs, including marijuana, is a criminal offense under CRS 42-4-1301. The penalties for driving under the influence of marijuana include jail time, fines, a suspended license, and increased insurance costs.

Call us for help…

If you got a ticket for driving with an open marijuana container or are facing a criminal charge for driving under the influence of marijuana, please contact us at Colorado Legal Defense Group.

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