Is It Illegal to Be High in Public?

I know I can’t smoke weed in public, but what if I smoked at home and then went outside? I’m so high right now and everyone is staring at me—am I going to get fined or arrested?!

OKAY, BREATHE—it’s unlawful to consume marijuana in public, but simply being stoned is not unlawful behavior under Oregon law, even in public. If you’re being a weirdo or engaging in criminal conduct, people may indeed be staring at you and the police might want to know what’s up. But if you’re just walking around, eating tacos, not bothering anyone or breaking any laws, chill out.

As a practical matter, if you’re under the influence but acting normally, people except for your mom are unlikely to notice. So seriously: chill out.

As a legal matter, “public intoxication” laws evoke complex policies around behavior regulation, personal privacy, individual autonomy, freedom from unwarranted searches, public health, and other issues exceeding this column’s word limit. Two Portland lawyers recently published a well-researched legal argument on the Weed Blog (theweedblog.com) suggesting a “fundamental right to use cannabis.” It’s relevant and I’d encourage anyone interested to check it out. Otherwise, here’s some food for thought:

No Oregon law makes marijuana intoxication illegal by itself, and the state specifically prohibits local governments from making public intoxication unlawful. Oregon’s prohibition on public intoxication laws apparently acknowledges that homeless people might have substance addiction problems and appear intoxicated in public, so it’s a dick move to fine them for it. The US Supreme Court decided it’s cruel and unusual to criminalize addiction, even though addiction-related conduct (such as stealing coffee, smoking cigarettes indoors, or impaired driving) can be unlawful.

Oregon has a history of treating public intoxication as a public health issue rather than a crime. If someone is dangerously intoxicated (a high standard), to the point of incapacitation or “true emergency,” police are empowered to take that person to a medical facility.

Intoxicated people sometimes have, let’s say, less-than-positive run-ins with law enforcement. Police have been known to question people for a variety of reasons that may be legal or illegal. Intoxicated people have been known to answer in a variety of ways that may be stirringly eloquent or really, really stupid. You have a constitutional right to keep your mouth shut, but being silent doesn’t always stop innocent people from getting arrested. According to my public defender friends, common charges include disorderly conduct, blocking traffic, creating a risk of public inconvenience, annoyance or alarm, making unreasonable noise, and interfering with a peace officer. If you’re seriously freaked out by these possibilities, consider Netflix, Pranayama breathing, a bath, and/or not being so intoxicated in public.

Publicly possessing more marijuana than state law allows is unlawful (check out the state’s chipper whatslegaloregon.com campaign) but under Oregon case law, ingesting a controlled substance does not constitute possessing that controlled substance. Being high on drugs is not the same as possessing those drugs.

The moral of this one is pretty obvious: Like with drinking, using pot changes your judgment, so don’t do anything stupid or otherwise illegal (you can and will get a DUII if you are caught driving impaired) and you should be a-okay.