Is it legal to smoke Cannabis in your backyard? An Attorney Weighs In

We spoke to everyone from state officials to marijuana retailers to police so you know what to expect.

The story generated a lot of questions from readers. We sought answers from Katherine McBroom, a partner at Kaedian, a Los Angeles-based law firm.

Q: People are allowed to consume marijuana in private areas. Does that include the outdoor areas of private property?

A: Smoking on private property, including in the backyard, is legal under state law — this will apply to marijuana as well.

Problems can arise with rental properties, however. Landlords can ban the smoking of marijuana, just as they can ban smoking in general. Additionally, in a multi-unit/family building, neighbors may complain to the landlord about the smell or use of marijuana (it’s still illegal under federal law and is a Schedule 1 drug).

This in turn could lead to a ban at a complex if one is not already in place, just to keep the peace. At which point a transgression or complaint could mean you are in breach of your rental contract, even if you do not face state criminal liability.

For those living in apartments, the best way to go (even in outdoor areas) is using a vape pen or other device that eliminates smoke and therefore the distinctive scent of marijuana. Edibles eliminate this issue altogether.

Q: What would happen if a Border Patrol agent found cannabis in a person’s car when they stopped at a place like the San Clemente Station checkpoint? If the person did not have more than one ounce of marijuana, and it was in a sealed container, would they be OK?

A: It is illegal to transport marijuana across state lines, even if marijuana is legal in both states. That goes for international travel as well. A border agent is likely to seize any marijuana discovered in the course of a search. If it is a small amount (under one ounce), the seizure is not likely to result in a criminal filing.

If you must travel with it, I would recommend more inconspicuous forms — edible, capsules. Border Patrol is not looking for minor marijuana possession. They’re looking for terrorists, firearms and transportation of illicit drugs (cocaine, meth, large amounts of marijuana).

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Q: Here’s a hypothetical: If a person hosts a party and provides marijuana and one of their guests gets in a car accident on the way home, is the host liable in any way?

A: It is helpful to look at cases involving hosts providing alcohol to a guest, as this will likely inform cases in this area and serve as precedent.

California law is fairly lax, compared to other states, in this department. Generally, business establishments and social hosts cannot be held civilly liable for an accident caused by an individual they served alcohol to — and this will likely also be true for marijuana.

There are exceptions: a business establishment can be liable if it sells alcohol to an obviously intoxicated person under the age of 21 who then causes injury to someone else. It is a misdemeanor for a business to sell or give alcohol away to “habitual or common drunkard or to any obviously intoxicated person. . .”

Finally, liability can be attached to a social host if he or she charges a cover or otherwise profits from the private event. There is a 2014 case where a host was held liable for injuries caused by a drinker under the age of 21, when the underage drinker was served alcohol by a host who also charged a cover.

Remember, you must be 21 to legally smoke marijuana even now, so the first rule of thumb to avoid liability would be not to serve anyone underage. Next, it you are hosting an event and want to serve marijuana, do not charge a cover or profit from the event.

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