We Asked a Lawyer What to Do if You're Pulled Over with Weed
"I would generally say to be respectful, but don't volunteer your own guilt."
Screengrab from YouTube. Clip via HOTCARSTV
It's a brave new world for cannabis laws, which will almost certainly shift yet again in the coming weeks as five new states vote on recreational initiatives. Among them is California, the seventh largest economy in the world and home to about 80 percent of all pot grown in the US. If the polls are any indication, it will be a huge domino to fall in the path toward legalization. The times are inarguably a changin', but driving with weed in your car will likely be a serious offense long after the last state makes the seemingly inevitable conversion.
The way we understand impairment is tricky. The current rule for intoxication in Colorado and Washington is five nanograms of THC in the blood, although that's a far less accurate barometer than the .08 rule for alcohol. A regular smoker could have double that level in her blood and be fine behind the wheel. Someone new to pot could have far less, and be a disaster. In short, the policy hasn't quite caught up to the research. Things will likely change over the next few years, but for now, your best bet is obviously finding a way to work with (or around) the laws currently in place.
VICE spoke to the executive director of the Cannabis Law & Policy Project at the University of Washington, Sam Mendez, to get a handle on the wide-ranging set of rules and regulations on driving with weed, and possession in general. The sticky details vary state to state, although one thing is as clear as ever: The Fourth Amendment is your friend.
VICE: Before we get started, we should probably point out that cannabis laws vary quite a bit from state to state, even when it comes to driving.
Sam Mendez: They definitely vary a lot. If a police officer finds a cannabis product in your car, depending on where it is in the car, and depending on your mental state, you might be completely fine or you might be arrested. In [some] states—Idaho is a good example—any cannabis, even just the smell of it, could lead to potential arrest or a charge of illegal possession.
Is there more consistency when it comes to the rules on intoxication?
A lot of lawmakers are finding parallels with alcohol. Sometimes that's suitable. Other times it's really unsuitable. For example, they're trying to create a bright line for when somebody is impaired. With alcohol, we have .08 blood alcohol content. That seems to work OK. The real reason behind that is providing evidence for the police when they go to court. They've gone and created a similar rule for cannabis, which is 5 grams of THC per milliliter in your blood. That's the current rule for Washington State, and it's actually a terrible barometer. Even AAA, which is not an advocacy organization at all, has said there is no scientific basis for that. The problem is that there's no basis for whether that person is intoxicated or not.
Is the alternative just police perception?
Yes, I think the police should just do the same thing they do with all sorts of other drugs. We're not trying to create bright-line rules for heroin use or legal limits for other drugs. Police just use impairment, like seeing if the person can walk in a straight line, etc. They have all sorts of regular tests for that, so I think the logical thing to do is rely on that.
Let's go back to possession. What should you do if you're driving with weed in your car?
Should we go ahead with the assumption that this is Washington State law?
Sure, let's work with Washington, and move from there.
In Washington State, you are allowed to possess up to one ounce of cannabis for personal use. So, first of all, any consumption of cannabis while driving is seen as a gross misdemeanor, and likely counts as driving under the influence. (As a disclaimer, I'm a policy expert here, I haven't tried DUI cases, but it is against the law to be consuming cannabis while driving.) Further, you're not allowed to personally possess cannabis in a moving vehicle. So cannabis has to be in a sealed container in either the trunk or glove compartment, or some other area that is inaccessible to the drivers or passengers.
So if someone knows he or she is going to travel with weed, what's his or her best bet?
For one, having it in the glove compartment is a better alternative than having it on your person. Personally, I find that interesting, because you can reach your glove compartment when you're driving. And just like anybody getting pulled over, you have the right to stay silent, the right to call a lawyer. I would generally say to be respectful, but don't volunteer your own guilt.
If we're planning ahead for being pulled over, is it a good idea to put it in the trunk?
It would actually be illegal for me as an attorney to advise someone to do something with their cannabis beyond the legal limits. Here in Washington State, yes, putting it in the trunk is a pretty safe bet. A cop cannot just open up the trunk for any reason at all. They need probable cause. They need some reason to believe laws are being broken in order to open up the trunk.
And that's true across all states, right?
Yes, that applies to all cases in which a cop pulls you over, not just with cannabis. It comes down to the Fourth Amendment, your protection from unreasonable searches and seizures.
So cops need probable cause to search the car, but what constitutes probable cause?
A lot of this is on a case-by-case basis. Say they see a couple of used needles on the car seat in plain view. Any evidence in plain view that leads them to probable cause that laws are being broken allows them to search the vehicle. But just pulling someone over is not enough. Someone speeding is not enough probable cause. Any judgement based on gender or race, that's not probable cause.
How about smell?
The smell would be treated very differently depending on the state. In Idaho, the smell very likely could be reason enough to search the vehicle. In Washington, the smell is not usually enough.
Let's talk amounts.
[In Washington] you are allowed to possess up to one ounce of cannabis. Anything between that and 40 grams is a misdemeanor. That's punishable by incarceration, a minimum of one day, and up to 90 days, and a maximum fine of $1,000. If you are possessing more than 40 grams, that's a felony [punishable by five years in jail in Washington state].
How does that rule apply to possession in general?
It's similar to driving. You're allowed to possess one ounce of cannabis, and there's no penalty for that in Washington. In Idaho, if you possess three ounces or less, it's a misdemeanor, and more than three ounces, it's a felony. [Editor's Note: NORML has a handy chart of possession laws broken down by state on its website.]
How does the Fourth Amendment come into play here? Would it be a good idea to carry weed around in a locked box?
I would say generally that you have a right to privacy, so carrying around something that's locked is protected.
Could that provoke suspicion, though?
I think practically speaking that's possible, but just having a locked briefcase or box on your person is not reason enough to assume that there's something illegal within it. That's not probable cause. I would also say that aside from legalization, there's a very strong trend toward decriminalizing, and no longer throwing people in prison for three years for possession.
Can you speak a bit toward the shift from imprisonment, and how much change we can expect to see in the near future?
Legalizing cannabis is a big step. There are, like, four states that have done so so far, though you can expect that number to essentially double in a few short weeks, but they can still make the policy position that throwing people in prison is costly, unjust, and just the negatives outweigh the positives for doing so.
How do you think that attempt at a bright line for driving will be affected by increased legalization?
I think it's very likely that will change. Especially with this industry coming out of the shadows, and kind of appearing out of nowhere from a legal standpoint. It's difficult, because impairment from cannabis is very different from alcohol, but yes, there's a lot of research going into it, and I think you can expect the laws to reflect that.
This interview has been edited and condensed for clarity.
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