Estimated reading time: 11 minutes
What is “Marijuana in a Motor Vehicle”?
Effective August 1, 2023 in Minnesota, even though “two ounces of marijuana flower” is legal to possess; if in a car it’s a misdemeanor crime. This is “Marijuana in a Motor Vehicle” or Minnesota’s rebranded “Open Package Law” crime. Any amount of cannabis flower, cannabis product (concentrates), or cannabis edibles is a crime to possess in a motor vehicle, if in or formerly “in packaging or another container that does not comply with the relevant packaging requirements in chapter 152 or 342.”
“Cannabis Open Package in a Motor Vehicle”
In recent years, police would write it up as “small amount of marijuana in a motor vehicle.” But years ago, police wrote on the citation “open bottle – marijuana.” Same idea. The statute number in the citation or Complaint controls, not the descriptive words.
“Marijuana in a Motor Vehicle” statute:
Minnesota Statutes §169A.36 (2024), titled “Open Package Law:”
“Subd. 2. Use; crime described. It is a crime for a person to use cannabis flower, a cannabis product, a lower-potency hemp edible, a hemp-derived consumer product, or any other product containing an artificially derived cannabinoid in a motor vehicle when the vehicle is on a street or highway.
Minn. Stat. §169A.36 (2024)
Subd. 3. Possession; crime described. It is a crime for a person to have in possession, while in a private motor vehicle on a street or highway, any cannabis flower, a cannabis product, a lower-potency hemp edible, a hemp-derived consumer product, or any other product containing an artificially derived cannabinoid that:
(1) is in packaging or another container that does not comply with the relevant packaging requirements in chapter 152 or 342;
(2) has been removed from the packaging in which it was sold;
(3) is in packaging that has been opened or the seal has been broken; or
(4) is in packaging of which the contents have been partially removed.
Subd. 4. Liability of nonpresent owner; crime described. It is a crime for the owner of any private motor vehicle or the driver, if the owner is not present in the motor vehicle, to [knowingly] keep or allow to be kept in a motor vehicle when the vehicle is on a street or highway any cannabis flower, a cannabis product, a lower-potency hemp edible, a hemp-derived consumer product, or any other product containing an artificially derived cannabinoid that:
(1) is in packaging or another container that does not comply with the relevant packaging requirements in chapter 152 or 342;
(2) has been removed from the packaging in which it was sold;
(3) is in packaging that has been opened or the seal has been broken; or
(4) is in packaging of which the contents have been partially removed.
Subd. 5. Criminal penalty. A person who violates subdivision 2, 3, or 4 is guilty of a misdemeanor.
Subd. 6. Exceptions. …
(b) Subdivisions 3 and 4 do not apply to: (1) a package that is in the trunk of the vehicle if the vehicle is equipped with a trunk; or (2) a package that is in another area of the vehicle not normally occupied by the driver and passengers if the vehicle is not equipped with a trunk. A utility compartment or glove compartment is deemed to be within the area occupied by the driver and passengers.”
Note that although, Minnesota Statutes §169A.36, subd. 4, quoted above, does not say “knowingly” keep or allow to be kept; criminal liability requires at minimum a “knowing” level of intent to violate a criminal law.
See my page for more on: Possession of Marijuana Criminal Laws in Minnesota.
Compare to Open Bottle in Motor Vehicle Statute
Minn. Stat. §169A.35 OPEN BOTTLE ALCOHOL LAW compared to Minn. Stat. §169A.36 OPEN PACKAGE CANNABIS LAW:
- Definitions of alcoholic beverages are specific but definitions of cannabis missing.
- “Drink or consume” alcohol clear; but “use” cannabis in motor vehicle vague.
- Possess open bottle vs. possess “in packaging or another container that does not comply with the relevant packaging requirements in …;”
Identification Proof: Is It Cannabis?
The statute does not define what cannabis, hemp or the like is prohibited in a motor vehicle, in contrast with numerous other Minnesota Statutes which do.
Police need to identify what suspected cannabis or product is. This is why the person stopped should never say or admit what it is.
For more on this, see my page: Identification of Marijuana, THC, Plants.
“Use” of Marijuana in a Motor Vehicle
And “use” of cannabis in a motor vehicle when the vehicle is on a street or highway, was new since 2023. Now, if the drivers admits “using” cannabis “in a motor vehicle when the vehicle is on a street or highway,” the state will have evidence of such “use.” Or if police observe such use.
For those few cases where the State is charging a “use in a motor vehicle” crime,” they have a problem. They don’t clearly define what “use in a motor vehicle” means.
“Using” means wearing Levi’s hemp jeans in a MV.
And the government must have evidence of a temporal connection, or nexus, between “use” and “in motor vehicle.” So, not “use in” unless the act of consumption happened in a motor vehicle.
Make them prove it. Don’t admit it: How to Avoid a Marijuana Arrest in a Car: Nine Tips.
But the state may be tempted to push the envelope and claim illegal use in a motor vehicle when the vehicle is on a street or highway, without direct evidence to support that suspicion. In such cases, the defense attorney should request a jury instruction that circumstantial evidence susceptible to an inference of innocence is reasonable doubt.
Defense: No Packaging or Container At All
If we take the words of this section of Minnesota Statutes at face value, as we must, otherwise lawful (two ounces or less) “possession” of marijuana flower or bud not in a container or packaging of any sort (and never was in legal retail packaging, like home grown or underground economy product) would not be criminal under the statute, either Minnesota Statutes §169A.36, subd. 3 or subd. 4. (Though “use” in a motor vehicle would be criminal under subd. 2.)
That seems like a possible drafting error, where the legislature’s effort to mirror the alcohol “open container law.” When we look at the Minnesota Statute Section just before this one, it’s Minn. Stat. §169A.35 “Open Bottle Law.” And Minn. Stat. §169A.36 “Open Package Law” relating cannabis in a motor vehicle, is worded nearly identically. But did this twinning go too far? (A liquid will always be in a container or packaged, when in a motor vehicle.) But due process requires a criminal statute to give notice about what specific conduct is criminalized.
And so we now have written into the statute these exceptions:
The Loose Bud or Shake on the floor Exception
Loose Bud or Shake on the floor Exception – not in packaging, home grown or legacy market sourced. This could be an unusual defense since it’s quite uncommon for people to have cannabis in a motor vehicle, loose and not contained in some sort of bag, jar, or other packaging.
The New Roach Exception
Repealed effective August 1, 2023, “Marijuana in a motor vehicle” charges under the previous statute, Minnesota Statutes §152.027, Subd. 3, had a minimum weight threshold for cannabis flower (plant-form) of 1.4 grams. That was the old “roach exception.” But that under 1.4 grams (cannabis flower, plant-form) exception is gone, under the new 2023 “Marijuana in a motor vehicle” or “open package in a motor vehicle” crime, Minnesota Statutes §169A.36. Under the new statute, we no longer have a minimum weight threshold. (But the State may not be willing to do a lab test to identify such small amounts, as a practical matter.)
On the other hand, the “packaging” language appears to be the continuation of the old “marijuana in a motor vehicle” statute’s “roach exception,” albeit with new statutory language. Why? Because an unpackaged “roach” or marijuana cigarette butt, not contained in a package may not be illegal in a motor vehicle (for age 21 and up), since it’s not contained in “packaging,” under the new statute, Minnesota Statutes §169A.36 “Open Package Law.” The New Roach Exception – not in packaging, home grown or legacy market sourced.
The Statute’s Safe Harbor
And it should go without saying, keeping it in the trunk – the statutes safe harbor – is a far better practice to avoid trouble with the law, than carrying loose bud around in the cab of the vehicle, without any packaging or container.
Motorcycles: Not “In” a Motor Vehicle Defense
The statute says “It is a crime for a person to have in possession, while in a private motor vehicle …” But if a person has something in a backpack, or even in their pocket, while riding a motorcycle it is literally not “in” a motor vehicle. The same can be said for other “motor vehicles” like boats, ATVs, golf carts, electric bicycles, and so on.
Is odor of marijuana probable cause?
No, the odor of cannabis alone does not give a police officer probable cause to suspect a marijuana in a motor vehicle crime. Since Aug. 1, 2023, the use of marijuana is legal. And if a reasonable inference of marijuana odor is that the person has in the past used marijuana, that does not mean the person is using or possessing marijuana in a motor vehicle now. The odor of burnt marijuana lingers for hours, or longer.
See my article: Is Odor of Marijuana: Probable Cause?
Compare: other marijuana crimes
Also new is criminal liability for passengers. The previous statute created criminal liability for the driver or owner, but not passengers. However, the prosecution will likely have a more difficult time proving guilt of knowing possession by a passenger, unless the passenger admits or it’s found on their person.
Keep in mind that though “use” is not illegal in Minnesota (other than in a motor vehicle), possession of marijuana is still a crime under Minnesota Statutes. If police find more marijuana or cannabis product than lawful to possess in Minnesota, or by someone under 21, they can still arrest, jail, prosecute, whether found in a motor vehicle or not.
See my page: Amount Thresholds for Criminal Possession of Cannabis in Minnesota.
Commercial drivers
Minnesota prosecutors can also charge commercial drivers with possession of marijuana in a commercial motor vehicle, violation of federal commercial driving rules.
Compare: DWI Marijuana
We also see cases where police confuse possession or use, with DUI marijuana. And if police find marijuana, they are more likely to suspect DUI-marijuana. But for a DUI marijuana case, the government should have evidence of:
- Driving impaired somehow
- Blood THC positive test
- Causal connection between the two (e.g. being hit by an at-fault driver running a red light, then testing positive, does not prove DUI marijuana)
For more on DWI marijuana cases and how to defend them, see my page: DUI Marijuana Minnesota.
How can I keep my record clean?
First, “marijuana in a motor vehicle” is a misdemeanor crime. And that means if convicted, the defendant has a criminal record. Avoiding a criminal record is valuable. Background checks related to employment, housing, gun rights and more; reveal criminal convictions and cause unwelcome consequences.
Second, any drug crime related language on your public record is damaging. So, words like “marijuana” and “drug paraphernalia” have consequences. And we want to keep those away, to protect your name, future employment opportunities and more.
The desired outcome for most people accused of this crime is to prevent a public record of a marijuana conviction. In order to do that, you’ll need to avoid a conviction for (1) a criminal charge; and (2) any charge with marijuana or drug related words.
A good Minnesota Marijuana Attorney can help you keep a marijuana in a motor vehicle conviction off your record.
It’s a trap: Generally Minnesota Courts have treated “marijuana in a motor vehicle” under Minnesota Statutes §169A.36, as a “payable offense.” And that means the person ticketed could pay the fine without appearing in court.
This, however, has resulted in:
- conviction, and
- driver’s license record of the conviction.
Sure, paying the fine without a court appearance offers temporary convenience. But a conviction record, and driver license record, is the long-term result. And many people don’t understand that until after they make the mistake. But the best way to solve this problem is to avoid it in the first place. How?
Preventing a conviction in court avoids the public conviction record, and the driver’s license record. So always fight every marijuana in a motor vehicle charge in court. And never “just pay the ticket.”
Best Practices for Prevention
The future: To prevent legal problems, keeping it out of the car is a best practice. “Keeping it out of the car” in this context means keeping it out of the passenger area, with the statute’s exception being “in the trunk of the vehicle if the vehicle is equipped with a trunk; or … in another area of the vehicle not normally occupied by the driver and passengers if the vehicle is not equipped with a trunk. A utility compartment or glove compartment is deemed to be within the area occupied by the driver and passengers.” Most cars have a trunk. And that’s where cannabis and cannabis products are best kept, if in a motor vehicle.
Non-Smoking Car: Some folks smoke up inside their car. They may do it for convenient shelter, or tunes. But if you do, you create an unnecessary legal risk. “Keep it out of the car” includes “don’t smoke it in the car.” Step out and touch grass. Or snow. Or go indoors. Just avoid smoking in the car. And as a bonus, this will prevent your car from acquiring an “odor of marijuana” which can linger for days or longer.
Reduce risk of DWI-marijuana: Though DWI-marijuana is a myth, no one wants a police officer to investigate them on suspicion of DWI-marijuana after a traffic stop. Avoiding marijuana-in-a-motor-vehicle and odor of marijuana will help avoid that.
The power of habit:
- We almost never get pulled over by police so the likelihood of having it in the car being a problem on any given day is low. So why be careful?
- Over time, the likelihood of being stopped by police in our car is near 100%. And traffic stops account for over 80% of police-initiated contacts. That means reducing your legal risk in car will have a big impact.
- So a habit of always putting cannabis and cannabis products in the trunk (and keeping a non-smoking car), 100% of the time, every time, will pay off by preventing this criminal charge 100% of the time. The first several times may require some thought. But over time it will become a good habit.
Question? Call Lawyer Thomas Gallagher, 612 333-1500
Though past results do not predict future success, we have a high rate of success in marijuana in a motor vehicle cases. So it’s worth hiring a good defense lawyer to defend against a public marijuana conviction record; as well as the driver’s license record.
More
Large Marijuana Case on I-94; Gallagher Wins Illegal Search
How to Avoid a Marijuana Arrest in a Car: Nine Tips
Marijuana DUI Myth vs. Science
Blog articles: Minnesota Marijuana Defense
Marijuana Legalization in Minnesota: Legalizing the Right Way