Law

Ask an attorney: What’s considered smoking in ‘public?’ What edibles can I legally carry?

Both of this month’s questions elicit the same answer — one which continually frustrates lawyers and the general public alike. That answer is: Nobody knows.

This is often the answer to legal questions because, until the courts have decided how a law should be interpreted, nobody knows how it will be interpreted.

That said, there are certain rules of interpretation that are generally applied. I will discuss those in my answers below.

Q: I know you can’t smoke marijuana in public, but what’s considered “public?” Can my adult son smoke while he’s sitting in his car in our driveway? Or in our garage with the door open?

A: It is an infraction carrying up to a $100 fine to smoke marijuana in public. So, what locations are public? Prop. 64 certainly doesn’t give any definition.

Attorney David Pullman

The best answer is probably found by looking to how courts have answered the same question for charges like drunk in public. If I’m drunk on my front porch, am I drunk in public? You may be surprised to learn that the answer is yes. The courts have generally ruled that anyplace freely accessible by your mail carrier or friendly neighborhood Jehovah’s Witness is public. So, front yard, driveway, porch – public; garage, back yard, inside home – not public.

Therefore, assuming the courts interpret “public” with regard to marijuana smoking in the same way they interpret “public” with regard to alcohol intoxication, your son would be in good legal standing smoking inside the garage, but on less solid ground smoking in the car in the driveway.


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

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


Q: Prop. 64 says you can carry up to an ounce of flowers or 8 grams of concentrate. What about edibles? How do I know how much is safe to carry or give away?

A: Another great question with no easy answer is about cannabis edibles.

No California court has ever weighed in on this question (pun intended). Nor does any statute define the weight of cannabis within an edible product.

Some general rules apply. First, the plain language of the law indicates that it is not an offense for an adult to possess less than an ounce of marijuana or 8 grams of concentrate. So, the prosecution will always bear the burden of proving that the weight of concentrate or marijuana within the edible exceeds those quantities; an impossible task.

Another rule is the rule of lenity, which says that an ambiguous penal statute must always be interpreted in favor of leniency to a defendant. Therefore, I highly doubt that anyone will have weight issues with their edibles (another pun?) Instead, the line will probably be drawn at the boundary between personal use and intent for sale. If the prosecution can’t prove that the intent is to sell the edibles, they have no case.


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