Smoking Bud At the Wheel is (Kind Of) Legal in California

California’s DUI laws already outlaw cannabis intoxication at the wheel, and Prop 64 (the state’s recently adopted adult use legalization law) explicitly bans “open containers” of marijuana in a moving car. But two state legislators say a loophole in 64, coupled with imprecise and unreliable testing methods for marijuana DUI, makes smoking weed behind the wheel (technically) legal. They’ve introduced legislation that would explicitly ban lighting up on the road.


Cannabis became legal for all adults 21 and over in California on Election Day when California voters approved Proposition 64, the Adult Use of Marijuana Act. AUMA legalized cannabis, but it also banned “open containers” of marijuana in a vehicle, including automobiles, boats and aircraft.

Lawyers interpret this to mean something similar to having an open container of alcohol. So if there’s a burning joint, a pipe in between passes or a glowing dab rig in your car, you could be in trouble.

But the Sacramento Bee reports that this still isn’t enough for Jerry Hill, a state senator from San Mateo County who’s put in work on cracking down on drunk driving. Hill is one of several lawmakers working to pass a bill that specifically prohibits smoking cannabis while driving a car.

“This legislation makes our laws for smoking while driving consistent with drinking while driving,” Hill said.

From the Bee:

Current law bans driving while under the influence of alcohol, marijuana or other drugs. But unlike a breathalyzer test for alcohol, there’s no standard method to determine marijuana impairment. Urine samples, which are often used in drug-free workplaces, are unable to determine whether someone is under the influence of marijuana at the time of the test or if the drug remained in their system from prior use. Proposition 64 required the California Highway Patrol and UC researchers to develop “protocols and best practices” for detecting those impaired from drug use.

If approved by the Legislature and signed by the governor, Senate Bill 65 could punish driving while using marijuana as a misdemeanor charge.

Hill’s office told the LA Weekly that the current law leaves too much grey area. 

Unfortunately, nothing in Proposition 64 or pre-existing law expressly prohibits smoking or ingesting marijuana while driving — leaving law enforcement officers with limited options if a driver is spotted smoking or ingesting marijuana products.”

Just because something isn’t specifically outlawed doesn’t mean you should do it. Eating a whole loaf of raisin bread in one sitting, farting in an elevator — smoking weed while driving a car. None of these are prohibited under California law, but all of these are ill-advised.

The latter is also a bonehead move that could earn you a DUI charge if a police officer isn’t impressed with your stoned driving. 

A specific ban may be the best way for law enforcement to ensure traffic safety in the age of legalization, as current tests for marijuana-related intoxication are imprecise at best and outright wrong at worst.

Of course, just because it’s illegal doesn’t mean people won’t do it. 

TELL US, do you think California needs stricter laws concerning smoking while driving?

Chris Roberts has written about medical cannabis, drug policy, and legalization ever since spending a few months in Humboldt County in 2009, with bylines for the San Francisco Chronicle, San Francisco Examiner, and SF Weekly. Follow him on Twitter and Instagram @cbloggy.

Leave a Reply

Your email address will not be published. Required fields are marked *