In the Weeds: What You Need to Know About Legal Recreational Marijuana in California

Recreational marijuana is now legal in California. Here are some basics you and your clients should know:

Where & When You Can’t Smoke

According to attorney Eric Ganci, you can smoke outside, but you “can’t smoke in public or within 1,000 feet of a school or daycare center when children are present” and more laws are likely to be created by local governments.

You cannot drive with an “open container” of marijuana in your car while driving. Ganci said, “California Vehicle Code 23222 is the ‘open container’ law. You can’t drive with an open container of booze, and the law has been amended to include weed. So now you cannot drive a vehicle with an open container of cannabis or cannabis product, and obviously can’t drink alcohol and/or smoke weed while driving.”

What does a Marijuana DUI look like?

“Weed is legal in California, but driving impaired still isn’t,” said Ganci.

Defining “under the influence” for cannabis is different than how the legal limit for alcohol is defined.

“There is no legal limit for weed, like how we have a per se alcohol legal limit for alcohol of .08 (or .01 if you’re under 21 or on probation…or .04 if you have a commercial license and are driving commercially). But even though there is no legal limit for weed, you can still be convicted of being ‘under the influence,” Ganci warns.

California law (per the Jury Instruction CALCRIM 2110) now defines being “under the influence” as no longer being “able to drive a vehicle with the same care and caution of a sober person, using ordinary care, given similar circumstances.”

Does having a Medical Marijuana Prescription protect me from a DUI?

Having a prescription is not per se a legal defense to being under the influence.

Ganci lists individuals’ rights regarding DUI drugs/DUI marijuana/DUI alcohol law and more information about legal marijuana on his blog here.

This information is for educational purposes only and is not intended to provide legal counsel or serve as legal advice. If you have a legal matter, it is best to consult the advice of an attorney.  You can get referred to an attorney for a free 30 minute consultation through the San Diego County Bar’s Lawyer Referral & Information Service at or by calling 1 (800) 464-1529.

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