Law

Ask an attorney: Can I smoke pot on probation? And what’s a closed container?

David Pullman is a criminal defense attorney in the Bay Area city of San Rafael who specializes in representing people accused of drug crimes.

Here, he answers questions from readers about how Proposition 64 — the recreational marijuana measure approved by voters Nov. 8 — impacts people on parole and the rules for safely transporting cannabis for personal use.

To submit questions about civil or criminal law as applied to marijuana in California, email askanattorney@thecannifornian.com.

Q: Is it legal for people who are on probation to smoke marijuana?

A: It is legal to smoke marijuana on probation, unless you have a probation condition that specifically forbids you from doing so.

Most people have a probation condition requiring them to lead a law-abiding life. Since it’s no longer against the law to smoke marijuana, for those 21 or over, this condition would not prevent anyone over 21 from using marijuana while on probation.

Attorney David Pullman

Sometimes, the court imposes a probation condition that specifically forbids you from using drugs and alcohol. Since marijuana and alcohol are now both legal, the court can only legally forbid you from using them if such a condition is reasonably related to the offense you committed or to your likelihood of future criminality. So, if your crime was marijuana-related, then the court can forbid you from using marijuana on probation.

Similarly, if you have a history of any kind of substance abuse, conditions forbidding even legal drugs like marijuana and alcohol are reasonably related to future criminality and so the court can forbid you from using those substances while on probation.

Because marijuana has only recently been legalized, many courts may still routinely try to impose probation conditions forbidding the use of marijuana, even when there is no justification with regard to the particular defendant. If you are being sentenced to probation and the court tries to impose a condition forbidding the use of marijuana, make sure your lawyer objects to that condition, unless you have a known history of substance abuse or your crime was marijuana-related.


Related: Free website helps people get marijuana charges reduced under Prop. 64


Q: Prop. 64 says you can have up to an ounce of weed in your car if it’s in a sealed container. What’s considered a sealed container?

A: With legal matters, exact wording is very important.

Prop. 64 doesn’t say anything about “a sealed container.” What it does say is that you can be fined up to a $250 if you possess an “open container or open package of marijuana or marijuana products” while in a moving vehicle. This is probably the dumbest part of Prop. 64, because the language is unclear and the courts are going to have to hash out (no pun intended) what these words mean.

Is a pile of loose weed in your console or on your passenger seat an open container? Not if you take the words literally. Yet, the court that you find yourself in might decide differently and you may have to appeal the matter to a higher court to get clarification.

Is a joint sitting on your dashboard an open container? I don’t think so, unless you consider a rolling paper to be a container. Again, the court you are in might disagree.

How about a closed zip-lock baggie or a glass jar with a cork in it? There will surely be lots of people asking these questions and the appellate courts will have to decide what the answers are.

The “open container” law regarding alcohol is worded very differently. That law forbids any “alcoholic beverage which has been opened, or a seal broken, or the contents of which have been partially removed.” But, if the authors of Prop. 64 intended to require unbroken seals or previously unopened containers, they could have said so.

A strong legal argument could be made that this section of the initiative is too vague and is therefore invalid. We will probably have to wait at least a year or two before the appellate courts determine whether this provision is legal and, if so, what it means.


Disclaimer: This column is solely informational in nature and is not intended as legal advice.