California Stoners Against Legalization Repeat the 'A Non-Store Ounce Is Illegal' Scare

Young cannabis plant marijuana plant detail
Young cannabis plant marijuana plant detail

No sooner do I get the latest post up about the California Adult Use of Marijuana Act (AUMA or "Sean Parker Initiative") then my Facebook lights up with a tagged post from longtime California marijuana activist Steve Kubby.


According to Russ Belville, and other supporters, the point of the Sean Parker Initiative is that by legalizing just one ounce, cops will no longer have any probable cause, based on odor, for searching [your] car.

This is absolutely FALSE. Under the Parker Initiative, the presence of an "open container" of weed is a criminal offense. So cops will know that most people keep their weed in baggies or personal containers, none of which will be legal under Parker.

It is an outright lie to tell anyone that marijuana arrests will go down, when Parker specifically creates a brand new crime of not having your weed sealed in a state approved container. You could be arrested, even if you are NOT driving and are ONLY A PASSENGER.

I respect Kubby, what he's been through, and his dedication to activism. But in this and other posts, he and other California activists, like Mickey Martin, are as gravely mistaken as the Stoners Against Legalization from Washington 2012 who also told me that transporting a non-store ounce would be illegal.

Arrests in all the states that have legalized marijuana have gone down. Not just the less-than-an-ounce busts in Colorado and Washington and not just the less-than-six-plants busts in Colorado. All marijuana arrests have gone down. In Washington (with no home grow) "All categories of marijuana law violations are down 63% and marijuana-related convictions are down 81%." In Colorado, "The total number of charges filed in court for marijuana possession, distribution, and cultivation in Colorado fell... 80.1%."

Even in Washington, with no home grow and a hideous per se DUID provision, marijuana arrests went down and DUIDs didn't replace them. California's AUMA legalizes marijuana in a very similar way to the currently-legal states, and even contains some provisions that improve on legalization (like allowing pot lounges), so it is reasonable to believe their arrests will decline after legalization, too.

My contention that the probable cause based on odor going away isn't just observation of the reality in four legal states where they've had to retire pot sniffing K-9s, but the actual text of the AUMA:

Section 11362.1(c)           Marijuana and marijuana products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.

But what about that "open container" Kubby's complaining about? Indeed, AUMA makes that illegal:

Section 11362.3(a)           Nothing in Section 11362.1. shall be construed to permit any person to: (4) Possess an open container or open package of marijuana or marijuana products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.

Section 11362.4 (b)          A person who engages in the conduct described in paragraphs (2) through (4) of subdivision (a) of Section 11362.3. shall be guilty of an infraction punishable by no more than a two hundred and fifty dollar ($250) fine.

Maybe that's the language Kubby is using to claim that there will be more arrests after legalization as cops bust adult stoners riding in the passenger seat with less than an ounce of weed in a Ziploc baggie, rather than the state-approved container.

Never mind asking him "How do we end up with more arrests with $250 fines for open containers that are non-arrest infractions?" Focus a moment on that "state approved container" part and ask "why does that Section 11362.3(a)(4) mention both 'open container' and 'open package?'"

AUMA has plenty of language dictating exactly how marijuana is to be packaged, including warning labels that must be on the packages sold at the future marijuana stores. AUMA also contains requirements that marijuana at the stores come in childproof containers. Maybe that's how Kubby came to assume "open container" and "open package" can only be those purchased at the state-licensed weed store.

Except for this part of the section on definitions:

Section 6, Division 10, Chapter 1, 26001(x)            "Package" means any container or receptacle used for holding marijuana or marijuana products.

Any container. And to be clear about marijuana not being just the stuff you get at the state store:

26001(s)               "Marijuana" has the same meaning as in Section 11018. Marijuana of the Health and Safety Code...

Which defines "marijuana" like so:

Section 4, 11018.              "Marijuana" means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include (a) industrial hemp, as defined in Section 11018.5 or (b) the weight of any other ingredient combined with marijuana to prepare topical or oral administrations, food, drink, or other product.

Maybe Kubby's theory is based on the idea that Section 6 deals with the commercial marijuana industry, therefore the definition of "package" in that section has to mean "any store-bought container or receptacle used for holding marijuana, complete with the required content and warning labels and a childproof seal." But that would mean the Ziploc baggie on our fictional stoner passenger couldn't be an lawful package, open or closed, and would contradict the possession rights granted by AUMA.

Consider that it will be lawful to (among other things) "transport or give away to persons 21 years of age or older without any compensation whatsoever, not more than 28.5 grams of marijuana." It's also lawful for me to cultivate marijuana at home and possess the results of the harvest. So if I lawfully grow some weed and lawfully give away less than an ounce to an adult friend who's lawfully allowed to possess it, how does my friend lawfully transport his gift home, other than walking, if a sealed marijuana package from the store is the only lawful closed container?

Clearly the point of the open container law is to bust people who are toking and driving. Section 11362.3(a) lists eight things you can't do, with (7) being "toke and drive" (I paraphrase) and (8) being "toke in a car as a passenger." But Section 11362.4 only lists punishments for paragraphs (1) through (6) -- there is no punishment listed for (7) or (8). So they give you the $250 fine for breaking paragraph (4), the open container.

The solution, of course, is don't toke in your car and keep the weed in a sealed container, preferably in the trunk. It's hard to fathom why that's an unacceptable compromise to ending marijuana prohibition, unless you're fighting for the right to toke and drive. Don't believe the scares that marijuana legalization is somehow worse than continuing prohibition; it's been proven wrong in four-out-of-four states so far.