Vehicle Code § 23222 CVC – Driving While Possessing an Open Container of Alcohol or Marijuana

California Vehicle Code 23222 CVC prohibits driving with an open container of alcohol or marijuana. This is technically not a crime but an infraction that is punishable by a fine of $100.00 plus court costs (but no jail time).

The language of the code section reads as follows:

23222. (a) A person shall not have in their possession on their person, while driving a motor vehicle upon a highway or on lands, as described in subdivision (c) of Section 23220, a bottle, can, or other receptacle, containing an alcoholic beverage which has been opened, or a seal broken, or the contents of which have been partially removed.

(b) (1) Except as authorized by law, a person who has in their possession on their person, while driving a motor vehicle upon a highway or on lands, as described in subdivision (c) of Section 23220, a receptacle containing 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 a 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.

Examples

• having an ounce of marijuana in a pocket while driving a car.
• driving a vehicle with an open bottle of beer in a cup holder.
• purchasing marijuana at a dispensary, breaking the seal on the container, and throwing it in the passenger seat.

Defenses

Criminal defense lawyers draw upon several legal strategies to help you contest charges under this statute. A few common ones include lawyers showing that:

• you were on a private road,
• you were authorized to possess marijuana, and/or
• a police officer stopped or arrested you without probable cause.

Penalties

A violation of California Vehicle Code Section 23222 is an infraction (as opposed to a misdemeanor or a felony). The offense is punishable by a fine of $100 or more.

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

• 1. What is prohibited by 23222 CVC?
• 2. Are there legal defenses?
• 3. What are the penalties?
• 4. Are there related offenses?
• Additional reading

1. What is prohibited by 23222 CVC?

VC 23222(a) is California’s law on alcohol and open containers while driving. The statute makes it an offense to:

1. drive a motor vehicle on a highway, and
2. do so while in possession of alcohol that is in an open bottle, can, or other container.¹

VC 23222(b) sets forth the law on the possession of marijuana while driving. The law makes it an offense to:

1. drive a motor vehicle on a highway, and
2. do so while in possession of marijuana that is either in an open container or no container at all.²

For the purposes of this code section, a “highway” is a freeway as well as any other public road or street. The term does not include private roads.

As to possessing marijuana while driving, you are not guilty of the offense if you are legally authorized to possess the drug (for example, a qualified patient with a valid prescription).³

2. Are there legal defenses?

If you are charged under this law, you can challenge it with a legal defense. Three common defenses include showing that you were:

1. driving on a private road.
2. authorized to possess marijuana.
3. stopped or arrested without probable cause.

Private road

Recall that this statute only applies if you are driving on a highway, essentially any public road. It does not apply to you if you are driving on private roads. Therefore, a valid defense is to show that you were operating a vehicle on a private road.

Authorized to possess marijuana

Also recall that VC 23222b does not apply to you if you were authorized to possess marijuana. This means you can challenge a possession of marijuana charge by showing that you were allowed to possess the drug under the law. Perhaps, for example, you had a valid medical marijuana card.

No probable cause

The Fourth Amendment to the U.S. Constitution says that law enforcement must have probable cause to stop or arrest you for a crime lawfully. This means you can always assert the defense that law enforcement stopped or arrested you without a reasonable belief that you committed a crime.⁴

3. What are the penalties?

A violation of this code section is an infraction.

Driving while possessing an open container of alcohol is punishable by a fine of $250.

Driving while possessing an open container of marijuana is punishable by a fine of $100.

4. Are there related offenses?

Drinking alcohol in a motor vehicle – VC 23221

Per Vehicle Code 23221 VC, drinking alcohol in a motor vehicle is the offense where you drive a motor vehicle, or ride as a passenger in one, and drink alcohol or smoke marijuana or any marijuana product.

As with a violation of VC 23222, a violation of this law is an infraction. The offense is punishable by a fine of $250.

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

Per Vehicle Code 23224 VC, possession of alcohol in a vehicle by a person under 21 is the crime where:

1. you are under the age of 21 and drive a motor vehicle, and
2. you do so while possessing an alcoholic beverage.

While VC 23222 applies to the possession of an open container of alcohol, this code section applies to both open and closed containers of alcohol.

DUI of alcohol – VC 23152a

Under Vehicle Code 23152(a) VC, DUI of alcohol is the crime where you operate a motor vehicle while under the influence of alcohol.

Note that if you display signs and symptoms of intoxication, you can be charged with this DUI section even if there is no evidence that your blood alcohol concentration measures above the legal limit of .08%.

In comparison to violations of VC 23222, violations of this statute result in more severe penalties.

For example, if you are guilty of VC 23152a DUI, you can face:

• a misdemeanor charge,
• custody in county jail for up to six months,
• a drivers license suspension by the DMV for six months,
• DUI school ranging from 3 to 9 months,
• fines and penalty assessments totaling between $1,500 and $2,000, and
• installation of an ignition interlock device for six months.

Additional reading

For more information about open container laws, refer to the following:

• Open Container Laws By State 2024 Guide – Forbes.
• Open Container and Consumption Statutes – National Conference of State Legislatures.
• Open Containers of Alcohol in Motor Vehicles – Alcohol Policy Information System (APIS).
• States With Open Container Laws Have Fewer Alcohol-involved Vehicle Crashes – National Highway Traffic Safety Administration (NHTSA).
• Can you drink alcohol in a car in California while someone else drives? What the law says – Sacramento Bee.

---