Here are some tips if you would like to challenge a citation for possession of marijuana in violation of Vehicle Code section 23222, subdivision (b).
Section 23222, subdivision (b), states: “Except as authorized by law, every person who possesses, while driving a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, not more than one avoirdupois ounce of marijuana, other than concentrated cannabis as defined by Section 11006.5 of the Health and Safety Code, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100). "
Vehicle Code section 360, defines "Highway" as “a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street.”
Thus, if you can persuade a judge that you were authorized by law to possess the marijuana, that you did not possess the marijuana, that you were not on a highway or other lands described in the statute when stopped, or that the officer found the marijuana during an unlawful search, you may convince a judge to dismiss your ticket.
California Law on Lawful Possession of Marijuana under the Compassionate Use Act
While possession of marijuana is generally prohibited, its use for medicinal purposes is legal under state law under Proposition 215, codified in section 11362.5, the Compassionate Use Act of 1996 (CUA).
In People v. Mower (2002) 28 Cal.4th 457, 122 Cal.Rptr.2d 326, 49 P.3d 1067, the California Supreme Court determined the CUA does not provide complete immunity from arrest and prosecution; “rather, the statute provides a limited immunity that allows a defendant to raise his or her status as a qualified patient or primary caregiver as a defense at trial · [or] · prior to trial on the ground of the absence of reasonable or probable cause to believe that he or she is guilty.” (Id. at p. 464, 122 Cal.Rptr.2d 326, 49 P.3d 1067.)
In 2003, the Legislature enacted the Medical Marijuana Program (MMP) to, inter alia, “promote the fair and orderly implementation of the CUA. [Citation.]” (People v. Wright (2006) 40 Cal.4th 81, 85, 51 Cal.Rptr.3d 80, 146 P.3d 531.) The MMP created a program for the issuance of identification cards to qualified patients and primary caregivers. (§ 11362.71 et seq.) Because the program is voluntary, one need not obtain an identification card to be entitled to the protections it provides. (§ 11362.765, subd. (b); People v. Wright, supra, 40 Cal.4th at pp. 93-94, 51 Cal.Rptr.3d 80, 146 P.3d 531 [the MMP applies to both card holders and noncard holders alike].)
“Those protections include[] immunity from prosecution for a number of marijuana-related offenses that had not been specified in the CUA, among them transporting marijuana. ‘Subject to the requirements of this article, [qualified patients and primary caregivers] shall not be subject, on that sole basis, to criminal liability responsibility for the housing, health, or safety of that person. (Italics added) (§ 11362.5.)
Thus, if you were transporting marijuana as allowed by the CUA and you provide evidence of this in court, the traffic court judge should dismiss your ticket. Some of this can get a little complicated so this might be the type of ticket that you should consider hiring a traffic ticket attorney to help you with if you believe you have a CUA defense.
The Penalty for Violating Vehicle Code section 23222, subdivision (b).
This is an infraction and the base fine can be up to $100, but many counties charge less for the base fine. For example, San Bernardino charges $70 for the base fine in 2016. But penalty assessments are added and these can be substantial. In San Bernardino, the penalty assessments bring the total fine up to $291, but additional fees of $75 appear to be added, which makes the total fine approximately $367.00. In other counties, these amounts can be a little more or less. There will also be one point added to your record by the Department of Motor Vehicles for being a negligent operator in incurring this offense if you are found guilty.
Under Vehicle Code section 12810.5a, if a Class C negligent operator has 4 or more points in 12 months, 6 in 24 months, or 8 in 36 months, the DMV can suspend the operator’s driver’s license.
Traffic School is Not available
No points are added to your DMV record for this violation. This is not a moving violation so traffic school is not available.
You want to plead guilty but lack the money to pay the fine or you just lost in court but can't afford to pay the fine.
If you can't afford to pay the fine and can show the court that you are unable to pay the full amount on your traffic ticket, you may request the court to consider your ability to pay. However, you must appear in court to do this. When you appear in court and plead “guilty” at arraignment, you may ask the courtroom Judge to consider your ability to pay and to reduce the fine to be paid.
If you plead “not guilty,” after a trial and conviction, you may ask the courtroom Judge to consider your ability to pay in deciding the fine. (Veh. Code, § 42003(c).)
Additionally, regardless of your plea, if you are ordered to pay a fine you may ask the court for an installment payment plan that is based on your ability to pay. Also, you can ask the court to approve community service due to financial hardship
Traffic Ticket Attorney
As you can see, fighting and beating this ticket can get a little complicated. There are experienced lawyers available whose practice focus on fighting traffic tickets who can help you.
Good luck. I hope this information helps you to make an informed decision
copyright © 2016 Christine Esser
The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established when a written retainer has been signed.
Disclosure; If you click on the Amazon link below you will be directed to the Amazon website. This short blog post may not contain all the information you would want to be able to fight a traffic ticket successfully. If you are in California, for more information, we recommend Fight Your Ticket and Win -California. If you are not in California, we recommend, Beat Your Ticket. Both can be obtained from Amazon by clicking on the links below. We may receive a small commission but this will not increase the amount that you pay.
Good luck.
I have not received anything from the author or publisher of these books to recommend them to others.
Last updated on March 27, 2016
