Chris wonders, "If you have a used pipe in your truck (or an unsmoked or partially smoked joint), can that be considered an open container, or proof of intoxication even if you have not smoked in several hours?"
Lots going on with this question, so let's start with where the law stands. As of this moment, Alaska doesn't have an open-container law on the books when it comes to cannabis. Such provisions were included in the omnibus crime bill last session. But that bill ended up staggering to a halt at the end of the regular term like a pipeline-surplus Suburban. It currently sits referred to the House Judiciary Committee.
Without a state law on cannabis open containers yet, communities may feel the need to go their own way. Anchorage was the first, and as far as I know, only community to put a cannabis open-container law on its books before the proposed state version reaches a final outcome. If I learn of another one, I'll update this space. It's a fair bet that if other communities have done so, they will follow Anchorage and just write it into existing alcohol open-container laws.
Read more Highly Informed: Seeking answers to Alaska's cannabis questions
So for now, all of this open container stuff just applies to Anchorage, with the understanding that similar rules may soon come to state law. But just because Anchorage has an open-container law for cannabis and the state doesn't, that doesn't mean drivers should immediately unseal cannabis containers as soon as they leave Anchorage as a gleeful expression of sweet, sweet freedom. There are many factors to be aware of.
For the time being, following the standard set by Anchorage would be smartly cautious. There is no open-container law at the state level, and there aren't clear definitions of cannabis impairment as there are for alcohol. But there are impaired driving laws that have been used to bring cases against people for driving while stoned. They're very rare, for reasons we've explored in past columns, but they have happened.
Anchorage's cannabis open-container law is essentially the same as the one for alcohol. If your marijuana isn't closed up in a sealed, tamper-evident package, and you're not a chauffeur or paid driver observing another set of rules, the container needs to be in a trunk or out of the passenger compartment. In most vehicles that means behind the last upright passenger seat. For your perusal, the applicable city law is 9.36.200.
Anchorage's open-container law only applies to cannabis "in any form," not to paraphernalia, assistant municipal prosecutor Seneca Theno said in an email. She explained that the open-container law itself doesn't consider whether the amount of unsealed cannabis found in a vehicle could get someone high or could potentially impair their driving.
"To use the open container of alcoholic beverage law as a comparison," she wrote, "the officer doesn't have to prove there was enough beer in the can to get drunk on – only that there was beer in the can, as opposed to an empty can, or a beer can filled with water. The same would be true for marijuana" (emphasis hers).
So a half-burned joint? Nope. That's a marijuana container which contains marijuana, and it'd be open. Pretty obvious there's beer in that can, in other words. When restaurants send you home with a half-drunk bottle of wine, they usually recork it, then wrap it up entirely in a plastic bag and zip-tie it at the top. So, either do something like that, roll the joint small enough to finish and sober up, or bring more friends.
Theno clarified that she meant "marijuana in any form" to indicate things like "loose pot, or a joint, or an edible with marijuana concentrate in it, or tincture, or oil for vaping, or any other form for consumption."
But since burned resin is a consumable (although nasty) form of marijuana, what about a dirty pipe? Would it be like an empty can that previously held beer, or like a can that still had a gulp or two of beer left in it? A definitive answer isn't available. So to be ultra-safest in this time of freshly born policy and code, and in keeping with the beer can analogy above, the piece should show no indication there was marijuana in it. Depending on the circumstance, there's a risk that a piece of paraphernalia with residue in the bowl could reasonably be interpreted as an unsealed container with a form of cannabis in it, and therefore an open container. If you clean your pieces like a raccoon cleans its food, there's likely much less risk. Heck, if it were squeaky clean, you could probably drive around with 15-foot steamroller sticking out of the cab past the tailgate as long as you tie it down and hook a safety flag on it.
Proof of impaired driving?
But could an open cannabis container or dirty pipe be used as proof of impaired driving, as Chris asks? Well sure, why not? Remember, as we discussed in two earlier columns, compared to alcohol impairment there aren't specific laws or limits to determine marijuana impairment, so discretion and judgment play a big role here. And every little bit of evidence counts in an investigation.
Cannabis DUIs are rare in Alaska, for several reasons that we discussed in the previous columns linked above. But that doesn't mean they aren't possible. Since there's no state law against an open container of herb, and the potential consequences for a drugged driving DUI are as severe as for an alcohol DUI, that means it's safest to avoid all question. That's just smart anyway, regardless of whether there's a clear guideline on either marijuana DUI or open containers.
Seasoned veterans of the war on cannabis may also remember other precautions to take: not being impaired when you get behind the wheel; driving safely and defensively for the conditions and posted speed; making sure every passenger is wearing a seatbelt; stowing the driver's cell phone; and periodically, like every few fill-ups, checking signal lights and other equipment for good working order. But all that is smart practice for any driver.
Aside from potential criminal liability here, there's another thing to think about in deciding whether to carry unsealed cannabis or dirty paraphernalia in the passenger compartment: data collection.
As former Anchorage Police Chief Mark Mew told us in May, if police suspect marijuana of contributing to a crime, and if they have some corroboration (like smelling it, seeing it or getting an admission), then they'll check a box on the police report that will contribute to an ongoing picture of "marijuana-involved" crime.
Mew said checking the box is not alleging "proof beyond a reasonable doubt for purposes of collecting the statistic," just that it's a common-sense call that helps police understand how often they encounter marijuana or anything else. Mew said, "We apply the same bar to 'alcohol involved,' '(domestic violence) involved,' and maybe some other things we want to track."
Naturally common sense varies by individual circumstance and person, but it's safe to assume a degree of "involvement" that pretty much everyone who checks that box agrees on. The stats being collected are not an absolute measure of marijuana's influence in crimes, but they are useful to police, policy makers and the public. But still. Good data is good data.
So say you are sober as a judge, but carrying a dirty pipe or half-burnt joint in the cab of your truck, and you get in a wreck. And if the officer at the scene spots it, he or she could reasonably decide to check the little box to indicate "marijuana-involved." And in that case, it could contribute in a small way to a faulty understanding of cannabis's role in car accident statistics.
But naturally bad data would be the least of someone's worries in that situation.
Have a question about marijuana news or culture in Alaska? Send it to firstname.lastname@example.org with "Highly Informed" in the subject line.
Alaska Dispatch Publishing