As more states move towards legalizing marijuana, laws continue to evolve and address new scenarios, both unforeseen and obvious. One particularly troublesome issue: open container laws.
Changing attitudes toward pot have led to thinking of it more as a social lubricant akin to alcohol than to its Schedule 1 compatriots, heroin and LSD. So it’s not surprising that states are using their existing alcohol regulations as the model for regulating marijuana.
But should somebody get busted for, say, having a loaded pot pipe in the glove box of their car?
Read on to see how various marijuana-allowing states are grappling with the problem, and where pot users might want to exercise a little extra caution.
Alaska’s regulatory grab bag
In the realm of confusing and contradictory pot laws, nobody tops Alaska.
Since a state Supreme Court ruling in 1975 determined that it was a privacy issue, Alaskans have had the right to grow marijuana at home. Meanwhile, last year, a voter initiative passed allowing those 21 and older to possess up to an ounce of cannabis and grow up to six plants in private.
In a Washington Post article, Brad Johnson, president of the Alaska Association of Chiefs of Police stated, “We have statutory conflict. [Cannabis] remains a controlled substance, by statute. The penalties for possession, use, sale, [and] manufacture as written prior to the ballot initiative remain in effect.”
There is nothing in the state’s motor vehicle statute that addresses cannabis directly. A proposed bill, SB 30, would have dealt with the question of open containers and other specifics of marijuana regulation, but that legislation did not pass.
Meanwhile, Alaskan cities, in the absence of a clear, statewide legal framework, have begun taking up the slack. In Fairbanks, a proposed open container law seems to have died on the vine, although a city marijuana tax was referred to general election. The City of Anchorage has passed a handful of new laws regulating marijuana in the past year, adding marijuana to existing laws governing public behaviors like smoking and drinking. In August, local open container laws were expanded to include marijuana, making it illegal to transport marijuana in Anchorage except in the trunk of the vehicle.
The bottom line is that law enforcement officers, with unclear legal requirements and no specific training in detecting marijuana impairment, are left to their own personal judgment—meaning an open container could easily be used as evidence.
Colorado’s open container law
Colorado addressed the open container question as soon as it legalized marijuana in 2013, but the answer wasn’t very clear. The law required marijuana in vehicles on public roadways or right-of-ways to be in an unbroken, sealed container. But it wasn’t specific about what kind of container met the requirement. Would a sealed baggie suffice? The statute didn’t say.
As a result, law enforcement recommended users protect themselves from varying interpretations of the law by always transporting marijuana in the trunk of their vehicle. Those found in violation of the law would be fined $50 for a traffic infraction.
Driving while impaired is a separate, more serious offense with stiffer penalties that match those for other substances. The legal limit for active tetrahydrocannabinol (THC) in whole blood is 5 nanograms per milliliter, but initial arrests can be made based on officers’ observations of impaired behavior, according to the Colorado Department of Transportation.
Washington State’s open container law
Washington State has been working to create consistency between its marijuana and alcohol laws. In a step in that direction, on September 26 a new open container law took effect in Washington, requiring that marijuana and marijuana-infused edibles must be in their original sealed package and stored in the trunk of the car or behind the backseat. An infraction of the new law results in a $136 fine.
Keep in mind that open container infractions are distinct from and can be in addition to driving impairment charges, which have much more serious results. The legal limit for THC in Washington is 5 nanograms per milliliter of blood.
Oregon’s gray area
Oregon’s legalization took place through voter initiative Measure 91. The measure takes effect in phases beginning this year, but gaps in Oregon’s marijuana laws have already been identified. The state’s open container law specifically mentions alcohol and has not been updated to include marijuana. Measure 91 does not specifically address open containers either. But in a move that is sure to generate legal interest down the road, law enforcement agencies have announced that they intend to treat marijuana and alcohol identically under the existing open container law.
Unlike Colorado and Washington State, Oregon has not set a legal limit for marijuana impairment. Since a urine test can detect marijuana use for up to a month, you could find yourself facing a DUI charge for marijuana consumed weeks before a traffic stop.
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