Possession of Marijuana Charges in Texas
Fort Worth Marijuana Attorney
So, the police charged you with possession of marijuana, or at least arrested you for being near marijuana. Now, you are trying to find a lawyer to defend your marijuana possession charges. We have defended literally hundreds of marijuana cases. We want to help you avoid having a conviction on your permanent criminal record. You can visit our Fort Worth law firm, today, to discuss your case.
We have a particular interest in marijuana defense for several reasons. One, we support efforts for reasonable marijuana law reform. Two, these cases often present interesting legal issues related to the Fourth Amendment. Finally, we believe most people facing these charges are not criminals and do not deserve a permanent criminal history.
Possible Defenses to Marijuana Charges
The defense lawyer handling your marijuana possession case should be able to discuss all possible defenses applying to you situation. Winning your case may include getting the charges dropped or dismissed and sometimes it may mean getting a “Not Guilty” jury verdict. Defense of marijuana charges requires well thought out strategies and tactics.
Some possible defenses to marijuana charges in Texas include:
- Evidence exclusion based on law enforcement unlawfully stopping your vehicle;
- Evidence excluded based on law enforcement unlawfully entering your home;
- Statements thrown out of evidence because law enforcement failed to properly give Miranda Warnings;
- Other constitutional violations by police officers leading to dismissal;
- Law enforcement procedural violations making evidence inadmissible;
- Entrapment by police or other law enforcement;
- Prosecutor failing to prove THC content of seized substance;
- Insufficient evidence to sustain a conviction.
James Luster and Cody Cofer were both prosecutors before becoming criminal defense attorneys. Sit down with them to explore all of the possible defenses to your marijuana charge.
Topics for Possession of Marijuana Charges in Texas
- Can we get the marijuana thrown out?
- Can we get the records expunged?
- Can we get the charge dismissed?
- Penalties based on Quantity
- Ticket for Marijuana
- Probation for Marijuana Charges
- Drug Free Zones in Texas
- Driver’s License Suspension
What is marijuana?
What does “possession” mean in Texas?
How much is a “Usable Quantity” of marijuana?
Measuring quantity or weight in Texas
First Offense for Possession of Marijuana
Legalization vs. Decriminalization
Approach to Possession of Marijuana Charges in Texas
Question 1: Charges thrown out of court?
Marijuana charges, like most drug charges, often hinge on whether evidence was legally obtained by police. In Texas, judges do not throw marijuana cases out of court before trial. Instead, your lawyer can file a “motion to suppress evidence” based on an illegal search and seizure. This may result in the government dismissing your marijuana charge.
Basically, if the police discovered marijuana (or any other evidence) as a result of the police violating your privacy or property rights (Fourth Amendment) then the marijuana should be “suppressed.” Suppressed in this context means the government cannot use it as evidence in your possession of marijuana prosecution (trial). Without the marijuana, the government usually dismisses the charge.
Take note, federal laws related to suppressing evidence are different and less favorable than those in Texas. So, if you have a federal drug charge, call and speak with Cody Cofer (former Assistant Federal Public Defender) and Board Certified Criminal Defense Attorney.
This area of law revolves around the Fourth Amendment to the United States Constitution, Texas Constitution Article 1 Section 9, and Texas Code of Criminal Procedure Article 38.23. Despite what you might find on different sources related to your rights about search and seizure, very few rules are cut-and-dry. Instead, Fourth Amendment issues have been changing and becoming more complicated since 1914 when a landmark case, Weeks v. United States, was decided by the Supreme Court. So, back to why you need a legal scholar or expert criminal lawyer on your marijuana charge. If you do not have a really good legal reason to throw the marijuana out of court, then we move to Question 2.
Sometimes, if your lawyer has a good relationship with the prosecuting attorney (i.e. he is well known in Tarrant County), then the prosecutor (District Attorney or County Attorney) will listen to your lawyer with an open mind. If your lawyer does a good job of showing the prosecutor the legal issues with the case, the case could be dismissed without having an actual motion to suppress hearing in front of the judge. This is one of the reasons it is a good idea to use a local attorney for your marijuana charge. James Luster was a prosecutor for Tarrant County for years, and now his criminal defense law office is only a few blocks from the Tim Curry Criminal Justice Center (downtown Fort Worth, TX).
Question 2: Program allowing you to expunge your marijuana charges in Texas?
The second question is an example of why you want a Tarrant County criminal defense attorney. Every county has different rules and policies about the programs offered for possession of marijuana cases. Ultimately our goal is to get your marijuana charge off of your record, right? The fastest way to do this may be to enroll in a “drug diversion program.”
These programs have strict deadlines and criteria. Unfortunately, out-of-town attorneys often do not get the latest information about these diversion programs. James Luster and Cody Cofer are criminal defense attorneys focused primarily on Tarrant County cases. This includes misdemeanor marijuana charges filed in Tarrant County. So, they spend a lot of time and effort staying familiar with the different programs available to people charged with possession of marijuana in this county. They are members of the Tarrant County Criminal Defense Lawyers Association, so they get regular email updates and are involved in forum discussions about changing policies. They are able to go to meetings and continuing education focused on the policies and procedures unique to Tarrant County. Most importantly, they are in the Tarrant County criminal courthouse (where your marijuana case is filed) almost every working day.
First time offender drug programs are the least risky way to get a marijuana charge off of your record.
If we can’t get your marijuana case thrown out or get you into a program that leads to expunging the marijuana charge from your record, then we turn to Question 3.
Question 3: How can we get this marijuana charge dismissed in Texas?
The third question is why you want a professional, trustworthy lawyer for your marijuana case. Think about it… If you are charged with possession of marijuana, and the police have a great case against you (without any legal issues), why would a prosecutor dismiss your marijuana charge? It is our job (client and attorney) to give them a good reason.
You have to realize that prosecutors are people. They may have even made a mistake once in their lives. Also, prosecutors (most prosecutors) are not interested in ruining lives just because they can. Instead, prosecutors want their jobs to make a difference. So, it is our job to show the prosecutors that you are taking your possession of marijuana charges seriously. Also, to show the prosecutor that sticking you with a conviction for possession of marijuana or a controlled substance would only hurt you and you do not need such a harsh outcome to correct your behavior.
We are not going to ask anyone to lie by promising they will never smoke weed again. We will ask you to stop smoking long enough to provide some clean specimens for urinalysis. Community service or a Texas Drug Offender Education (DOEP) class may be a part of our plan. Regardless, we keep our (client and attorney) focus on getting your marijuana case dismissed, so you can later get the case expunged.
This is the part of our strategy where your employment, education, and community record pay off. We need to paint a complete picture of who you are. The prosecutor may only see you as a possession of marijuana case. It is the job of your defense attorney to demonstrate for the prosecutor that you are not just a case.
Texas Possession of Marijuana Laws
Penalties for Possession of Marijuana – Quantities
The crime of possessing marijuana is not found in the Texas Penal Code. Instead, the law is in the Texas Health and Safety Code Section 481.121 – Offense Possession of Marijuana. This is a chart outlining the punishment (penalty) for possession of marijuana.
|Amount||Level of Charge||Confinement||Fine|
|2 ounces or less||Class B Misdemeanor||0 to 180 days jail||$0 to $2,000|
|Over 2 ounces to 4 ounces||Class A Misdemeanor||0 to 365 days jail||$0 to $4,000|
|Over 4 ounces to 5 pounds||State Jail Felony||180 days to 2 years State Jail||$0 to $10,000|
|Over 5 pounds to 50 pounds||Third Degree Felony||2 to 10 years prison||$0 to $10,000|
|Over 50 lbs. to 2000 lbs.||Second Degree Felony||2 to 20 years prison||$0 to $10,000|
|Over 2000 lbs.||First Degree Felony||5 to 99 years or Life prison||$0 to $50,000|
|*Texas Health & Safety Code § 481.121 – Possession of Marihuana|
Can you get a ticket for marijuana possession?
Yes and no. When people say “ticket” they usually mean a Class C Misdemeanor (fine only offense). Possessing any amount of marijuana is a more serious charge than a Class C. Any useable amount of marijuana less than 2 ounces is a Class B Misdemeanor (up to 180 days in jail). So, you can’t get a “ticket” for marijuana in the sense that any marijuana charge is more serious than a Class C. However, Texas law does allow a police officer to issue a citation instead of arresting someone for a misdemeanor marijuana charge.
If a police officer charges you with possession of marijuana in Tarrant County and you live in Tarrant County then the officer does not have to arrest you for a Class A or B misdemeanor. Instead, the police officer issues a citation (ticket) telling you when and where you need to appear for court. This provision is found in Texas Code of Criminal Procedure Article 14.06. Unfortunately, the practice in Tarrant County is for police to arrest people for possession of marijuana, and police do not just issue a citation for marijuana possession.
Probation for Possession of Marijuana
For any misdemeanor marijuana charge you can receive probation (deferred or regular). If you have never been convicted of a felony then you may receive probation for a felony marijuana possession charge. If you have never been convicted of a felony and your marijuana charge is a State Jail Felony then it is mandatory that you receive probation (unless you have more than 1 pound). Generally speaking, regular probation laws apply to marijuana cases.
Drug Free Zone Penalty for Marijuana Possession
The outrageous “Drug Free Zone” laws apply to possession of marijuana. So, if you are charged with possession of marijuana in a drug free zone you are looking at much harsher penalties.
|Amount||Level of Charge||Confinement||Fine|
|2 ounces or less||Class A Misdemeanor||0 to 365 days jail||$0 to $4,000|
|Over 2 ounces to 4 ounces||State Jail Felony||180 to 2 years State Jail||$0 to $10,000|
|Over 4 ounces to 5 pounds||Third Degree Felony||2 to 10 years in prison||$0 to $10,000|
|Over 5 pounds to 50 pounds||Super 3rd Degree||7 to 10 years prison||$0 to $10,000|
|Over 50 lbs. to 2000 lbs.||Second Degree Felony||7 to 20 years prison||$0 to $10,000|
|Over 2000 lbs.||First Degree Felony||10 to 99 years or Life prison||$0 to $50,000|
|*Texas Health & Safety Code § 481.134 – Drug Free Zone|
Not only does the penalty for marijuana possession increase, but you must serve that sentence consecutively to any other sentence you receive. This is what is known as “stacking” your sentences.
Example of Penalty Stacking: During the night (2:00 AM) you get pulled over near a school. Then the police charge you with DWI and the police find some marijuana in you car. You get sentenced to 30 days jail for the DWI and 30 days for Marijuana Possession. The law requires the judge to “stack” those sentences. So, instead of 30 days served concurrently (at the same time), you serve 60 days.
Driver’s License Penalty for Marijuana Possession
If you are convicted of possession of marijuana then your driver’s license will be suspended for a minimum of 180 days. Texas will not lift your driver’s license suspension until you have taken a drug education class and paid all applicable fees. It is important to gain an understanding of what “convicted” actually means. This is a discussion you need to have with you criminal defense lawyer before deciding how you are going to handle you marijuana charge.
In addition to the suspension, you must comply with the Safety Responsibility requirements and complete an authorized Drug Education Program through the Texas Department of State Health Services. Failure to complete the program will result in a revocation of the license beyond the 180 days suspension until the Department receives a completion certificate.
If you do not have a Texas driver license at the time of offense you will be denied a Texas driver license for a period of 180 days. The Order of Prohibition (180 days) will begin upon first contact with DPS Driver License Personnel. Safety Responsibility requirements will be in effect for this suspension. The SR-22 insurance certificate will be required for two (2) years from the date of conviction for the drug offense.
What is marijuana (marihuana)?
Texas law uses an ‘h’ rather than a ‘j’ when spelling marijuana (Marihuana). The Texas Health and Safety Code defines “Marihuana” as the plant Cannabis sativa L. (it does not matter whether the plan is growing). It also includes the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds.
The definition specifically excludes:
- resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin;
- the mature stalks of the plant or fiber produced from the stalks;
- oil or cake made from the seeds of the plant;
- a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake; or
- the sterilized seeds of the plant that are incapable of beginning germination.
These exclusion are not necessarily “good news,” because some of the exclusions may be punished more harshly in other parts of the law.
Marijuana is also known as Cannabis, among a lot of other names. Marijuana is prepared or processed Cannabis plant that people most often use as a psychoactive drug or medicine. The part of marijuana (Cannabis) that is most responsible for getting someone high (psychoactive part of cannabis) is the chemical tetrahydrocannabinol (THC). THC is only one of 483 known chemical compounds in the plant. Depending on the source you consult, you may find sixty-five to over 100 other compounds identified in the plant that are considered cannabinoids. “Cannabinoid” is a chemical classification. These chemicals are called this because these chemicals connect with parts of the nervous system known as “cannabinoid receptors.” This connection between the chemical and the receptors changes neurotransmitter release in the brain. Cannabinoid receptors (found throughout the body) are part of the Endocannabinoid system. This is a system found in mammals which is involved a lot of our body’s processes including appetite, feelings of pain, mood changes, and our ability to remember.
Someone can ingest Cannabis (marijuana) by smoking, vaporization or mixing it in with food or drink. A lot of people use marijuana for its mental and physical effects. This is commonly called a “high” or ” getting stoned.” These effects: change a person’s perceptions; lead to euphoria (elevated mood); and increase can increase a person’s appetite. There can be some unintended side effects like impaired short-term memory, dry mouth, loss of normal use of motor skills, redish eyes, and paranoia or anxiety.
There is a lot of disagreement about the possible “long term side effects” caused by marijuana. Some groups claim marijuana may: become addictive; inhibit people’s mental ability if the drug is used while a teenager; and create behavioral problems in children if their mothers used marijuana during pregnancy. This claims are widely disputed.
A person usually begins to experience the effects of marijuana within minutes of ingestion by smoking or within 30 minutes to an hour if eaten. Depending on the specific chemical properties of the marijuana ingested, the effects can last for 2 to 6 hours.
What does “possession” mean in marijuana cases?
You don’t have to actually have marijuana on your person. You can be charged with possession of marijuana if it is found in your car or near you. In Texas “Possession” means actual care, custody, control, or management. So, if you are in a car that is pulled over and searched, and the police find marijuana in the vehicle then you can be charged with possession. However, “mere presence” is not enough to convict someone of “possession” of marijuana.
Presence or proximity, when combined with other evidence, either direct or circumstantial, may establish possession. If a person does not have exclusive possession of the place where the marijuana was found the law requires that additional independent facts that “affirmatively link” a person to possession marijuana. The idea of “affirmative links” is intended to protect innocent bystanders from conviction based solely on their proximity to someone else’s marijuana.
The following nonexclusive list of factors has been recognized as tending to establish affirmative links:
- A person’s presence when police search an area;
- Whether the marijuana was in plain view;
- A person’s proximity to and the accessibility of the marijuana;
- Whether a person appears to be under the influence marijuana;
- Whether a person possesses other contraband (i.e. drug paraphernalia) when arrested;
- Whether a person makes incriminating statements when arrested;
- Whether a person attempts to get away from police;
- Whether person makes furtive gestures with police around;
- Whether there is a small of marijuana (burnt or fresh);
- Whether contraband or drug paraphernalia is in plain view;
- Whether a person owned or had the right to possess the place where the marijuana is found;
- Whether the place where the marijuana is found is enclosed;
- Whether a person was found with a large amount of cash.
The law does not necessarily look at the number of these “affirmative links,” instead Texas courts have said it is the “logical force” of all of the evidence that is important. Picking apart the State’s case against you may be the best way to defend you possession of marijuana charge in Texas, but you need to speak with a Fort Worth criminal defense attorney about how to approach your case. Each case is different and poses different legal and factual issues. Speaking with an experienced marijuana lawyer can help you understand the possible defenses to your case.
What does “Usable Quantity” mean for marijuana charges?
Frankly, any amount of marijuana is probably going to be considered “usable” in Texas courts. The question of whether police recover a “usable” amount has not been litigated very much. There are a few cases that have been appealed. One is a Andrade v. State of Texas from 1983. This case said that 0.38 grams of marijuana was a “usable” amount. The court explained that the threshold is a that there must be “an amount sufficient to be applied to the use commonly made thereof which is to smoke it in a cigarette.” It is unclear as to whether amounts less than needed for a joint (marijuana cigarette) would constitute a “usable” quantity. There is also the question of whether the quality of what is recovered may be a question. For instance, if police recover only the woody stem of a marijuana plant, does this constitute a “usable” amount of marijuana? These and other questions may be points for attack for your criminal defense attorney, but these are complex legal issues and you should listen to your lawyer about whether you may have a viable defense.
Ounces and Grams of Marijuana
You will notice, Texas uses “Standard” units to measure marijuana amount (mass or weight), rather than metric units. Grams (gm or g) are a metric unit of mass. Often, people purchase marijuana in grams. Police reports or records may also use grams to measure an amount of marijuana. So, when you are determining the Texas penalty for a marijuana charge, sometimes you need to convert ounces to grams or grams to ounces. These are the numbers for converting marijuana between grams and ounces:
- 1 gram is 0.035274 ounces
- 1 ounce is 28.3495 grams
- A half-ounce is 14.1748 grams
- A quarter-ounce is 7.08738 grams
In Texas, the most common marijuana possession charge is an amount under 2 ounces. Two ounces is equal to 56.699 grams of marijuana. If you are searching the internet, do not be confused by references to a “metric ounce.” This is not used in Texas for marijuana cases. A “metric ounce” equal to 25 grams and 20 make the metric pound of 500 grams. The charge for possession under two ounces is the lowest Texas marijuana charge (Class B Misdemeanor). This is what police will charge a person with if there is a “usable quantity of marijuana.” If there is not a usable quantity (i.e. only residue or ash) then a person may be charged with Possession of Drug Paraphernalia (Class C Misdemeanor).
First Offense for Possession
Aside from fighting your case, you may be eligible for a “diversion program” in Tarrant County. The timeline for getting into these programs are very strict, and this is something you should discuss with your criminal defense attorney at the very beginning of you case. Most of the time it is a good idea to hire a Fort Worth criminal defense lawyer if you are charged with a crime in Tarrant County, but this may be especially true if you are charged with a first offense of possession of marijuana. You need to find a lawyer that knows the ins-and-outs of the Tarrant Count programs.
Even if you do not qualify for a drug diversion program, your lawyer may still be able to get your case dismissed. Of course, no attorney can guarantee an outcome, but we know the most effective strategies to get your first offense marijuana possession case dismissed. So, if you have been arrested for marijuana possession, and it is you first offense, you need to meet with an attorney quickly. This situation can be very time sensitive. The sooner you have a skilled defense attorney on your case, the sooner you can start working your way to dismissal and ultimately expunge your record.
Young Offenders | Marijuana Possession
It’s a mistake to just have you child “take their lumps” for a marijuana charge. Certainly, you can parent your child however you see fit, but letting them just plea to a drug charge will negatively impact them for years to come and maybe the rest of their lives. If you or your child is charged with misdemeanor marijuana possession, contact a criminal defense lawyer who knows how to challenge police evidence and work toward getting you the best outcome possible.
James Luster is a former prosecutors who knows the legal system from both sides. He has handled misdemeanor and felony drug cases, taking many of them to trial. He now uses this experience to provide an aggressive defense to clients charged with offenses such as misdemeanor and felony marijuana possession. He knows how prosecutors will likely approach your case, how the police gathered the evidence, and what strategies to employ, depending on the court personnel involved.
Don’t leave the outcome of a marijuana possession charge to chance. If you have been charged with any level of misdemeanor or felony, from possession drug paraphernalia to felony amounts, contact a knowledgeable attorney who will work hard to get the best result possible for you. We will work to get the judge to suppress evidence of marijuana possession or try to get the jury to disregard the evidence of marijuana possession. It’s important to get an experienced trial lawyer to handle your marijuana possession case. Regardless of whether your case resulted from a traffic stop by Fort Worth, Arlington, or Hurst police your case (if a Class B Misdemeanor or higher) will be filed in Tarrant County criminal courts located downtown Fort Worth. Walk a block to our office to discuss your marijuana case one of our criminal defense attorneys.
Marijuana | Legalization vs. Decriminalization
A discussion of legalization and decriminalization must begin with a brief overview of the power of the Federal Government to control the States. Any action that is prohibited by the Federal Government and the U.S. Constitution must not be allowed in the individual States (e.g., slavery). Conversely, any action that is allowed by the Federal Government must be allowed in the individual States (e.g., recognizing gay marriage). Under the idea of Federalism: If the Federal Government is silent regarding a specific action, then it is up to the individual States to decide whether and how it will be regulated.
Federal law, as written, is still very clear: possession, transfer or sale, and cultivation of cannabis is illegal, thus making it illegal in each of the individual States. Someone in violation of Federal cannabis laws can be prosecuted by the Federal Government. States may also decide how they will prosecute the possession, sale and cultivation of cannabis, and an individual violating a State’s laws can be prosecuted by that State. However, all this changed in 2013 when then-Attorney General Eric Holder announced the State Department would not fight new marijuana legalization laws in Colorado and Washington State, as long as the states ensured children and criminal gangs wouldn’t be able to get their hands on the drugs. The Justice Department also issued a directive that Federal prosecution of low level marijuana offenders would no longer take priority.
Since 2013, several more states have taken steps to decriminalize or legalize marijuana possession, and the list continues to grow as public interest groups educate lawmakers and individuals on the benefits of decriminalization and legalization.
Decriminalization of Marijuana
Decriminalization generally means that under the State’s laws a person will not be criminally punished for possession of a small amount of cannabis intended for personal use, may allow for cultivation for personal use, and/or may allow for nonprofit transfers of small amount (e.g., giving a small amount to a friend). Any penalties imposed for the improper possession or transfer of marijuana are treated like a traffic offense, punished with a small fine, and cannot lead to jail time for first-time offenders. States who have adopted decriminalization policies will still prosecute people who possess, sell, traffic or cultivate large quantities of cannabis, and it is still illegal to give or sell marijuana to minors.
States who have adopted such laws point to national research indicating decriminalization frees up millions of dollars in public funds for the prosecution and rehabilitation of violent criminals and repeat offenders, decriminalization does not lead to increased drug use or overall criminal activity, and decriminalization reduces instances of violence associated with the illegal marijuana trade.
Unfortunately, some jurisdictions who make the jump to decriminalization fail to allow for the legal dispensation of marijuana, leading criminal gangs to still be involved in the supply and sale of weed. Such half-hearted policies fail to realize the potential benefits of a well-rounded policy: bringing marijuana possession and use out of the shadows, dealing a financial blow to criminal organizations, and reducing the stigma for responsible marijuana users. Texas is one of those states. So, if police arrest you then you need to contact a criminal defense lawyer for your marijuana possession charge.
Legalization of Marijuana
National and international research consistently confirms that the criminalization and prohibition on the responsible use of marijuana has neither swayed public opinion, reduced use, or curbed the billion dollar drug trafficking enterprise worldwide. On the contrary, regulation by criminalization only benefits one group: drug cartels willing to risk everything for the almighty green dollar.
Colorado and Washington State were on the front lines of legalization, voting in 2013 to approve referendums allowing a broad array of recreational marijuana use. Several states have followed suit, allowing for the legal possession of a small personal amount of marijuana, as well as the highly-regulated cultivation and dispensation to individuals by licensed facilities. Legalization means users and possessors will no longer face penalties (criminal or civil), except for violating secondary laws such as designating where marijuana smoking can take place and setting age limits for possession.
Medical Exemption for Marijuana
Even some hard-nosed conservative states like Texas are slowly coming around to the medical benefits of marijuana. In 2015 Texas passed a very narrowly tailored medical marijuana law that will allow certain seizure-sufferers to be treated with non-THC cannabis. Other states that have passed laws allowing doctors to prescribe cannabis for the alleviation of cancer treatment side effects, nerve damage, glaucoma, and the list goes on. Such policies allow legislators to appear compassionate while remaining engaged in the “War on Drugs.”
We take civil liberties seriously. Our legislature has people fighting the good fight, and we need lawyers in the courtroom doing the same. Your rights to be free of unreasonable searches and seizures is not only important, it is vital to our system of government. Marijuana charges create the battlefield for these issues. If you are charged with possession of marijuana get a fighter on your side.