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Marijuana in a Motor Vehicle

What is a Marijuana in a Motor Vehicle crime?

Effective August 1, 2023 in Minnesota, even though a “two ounces of [plant-form] marijuana” is legal to possess; if in a car it’s a misdemeanor crime.  This is Marijuana in a Motor Vehicleor 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, unless sealed in approved packaging.

Cannabis Open Package in a Motor Vehicle crime

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.

Cannabis_Cannabus-sm marijuana in a motor vehicle
Cannabus: marijuana in a motor vehicle

The 2023 Minnesota Marijuana in a Motor Vehicle statute

Minnesota Statutes 169A.36 (2023):

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.

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. (a) This section does not prohibit the possession or consumption of cannabis flower, a cannabis product, a lower-potency hemp edible, a hemp-derived consumer product, or any other product containing an artificially derived cannabinoid by passengers in:
(1) a bus that is operated by a motor carrier of passengers as defined in section 221.012, subdivision 26;
(2) a vehicle that is operated for commercial purposes in a manner similar to a bicycle as defined in section 169.011, subdivision 4, with five or more passengers who provide pedal power to the drive train of the vehicle; or
(3) a vehicle providing limousine service as defined in section 221.84, subdivision 1.
(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.”

Minnesota Statutes 169A.36 (2023)

Note that although, Minnesota Statutes 169A.36, subd. 4, quoted above, does not say “knowingly” keep or allow to be kept; criminal liability does require at minimum a “knowing” level of intent to violate a criminal law.

Is odor of marijuana alone, probable cause?

We say 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. So 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 our related article for more on: Odor of Marijuana: Probable Cause to Suspect a Crime?

Compared to other marijuana crimes

Repealed effective August 1, 2023, “Marijuana in a motor vehicle” charges under the previous statute, Minnesota Statutes Section 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 is now gone under the 2023 “Marijuana in a motor vehicle” or “open package in a motor vehicle” crime, Minnesota Statutes 169A.36. Under that, new statute, we no longer have a minimum weight threshold. Any amount in a motor vehicle is a crime, unless sealed ion original approved packaging, or in the trunk or equivalent.

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.

And use of cannabis in a motor vehicle when the vehicle is on a street or highway, is new for 2023 and beyond. 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.

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 at least reasonable doubt.

Minnesota prosecutors can also charge commercial drivers with possession of marijuana in a commercial motor vehicle, violation of federal commercial driving rules.  

And criminal possession of cannabis and cannabis products amounts can happen in a motor vehicle.

More on other Minnesota marijuana crimes.

We also see cases where police confuse possession or use, with DUI marijuana. But for a DUI marijuana case, the government should have evidence of:

  • Driving impairment
  • 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)
Gallagher's Minnesota Marijuana in a Motor Vehicle CLE
Attorney Thomas Gallagher presents Minnesota Marijuana in a Motor Vehicle CLE

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 (license) trap
It’s a (license) trap

Loss of Driver’s License & Driver’s License Record

It’s a trap: Generally Minnesota Courts have treated marijuana in a motor vehicle under Minnesota Statutes 152.027, Subd. 3, as a “payable offense.” And that means the person ticketed can pay the fine without appearing in court.

This, however, has resulted in:

  • a conviction,
  • a driver’s license record of the conviction, and
  • driver’s license revocation.

Sure, paying the fine without a court appearance offers temporary convenience. But a conviction record, driver license record, and driver’s license revocation 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, the driver’s license record and the 30 day license revocation.

So always fight every marijuana in a motor vehicle charge in court. And never “just pay the ticket.”

Why Retain a Defense Lawyer?

We have a high rate of success in marijuana in a motor vehicle cases. 

Minnesota's Marijuana Attorney Thomas Gallagher
Minnesota’s Marijuana Attorney Thomas Gallagher

So it’s worth hiring a good defense lawyer to avoid a public marijuana conviction record; as well as the driver’s license record and revocation.

Question?  You can make a phone call to Thomas Gallagher, Minneapolis Marijuana Lawyer at 612 333-1500

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