FAQs About Possession of Marijuana in Texas

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UnknownPossession of Marijuana FAQ

Q: What does possession really mean?

A: The Texas Penal Code Section 1.07(39) defines “possession” as “actual care, custody, control, or management.” In other words, the State has to prove that someone was in actual care, custody, control, or management of the marijuana not just that someone was merely in close proximity to the drugs.

Q: What exactly is considered marijuana?

A: The legal definition of marijuana is defined in the Texas Health and Safety Code. Marijuana is in its own category and for the purposes of marijuana possession, is defined as any Cannabis sativa plant, whether it is growing or not, the seeds of the plant and any preparation of the plant such as a joint or a package containing dried and shredded buds.

Q: How serious is a possession of marijuana charge?

A: It depends. Possession of marijuana is at least a misdemeanor criminal charge under Texas law. Though most minor marijuana possession cases can be dealt with effectively, more serious charges with larger quantities or intent to sell are extremely serious charges.

Q: What are the laws and penalties regarding marijuana possession?

A: As follows:

Weight Classification Penalty

*2 ounces or less
Class B misdemeanor
Not more than 180 days in a county jail and/or a fine of not more than $2,000

*More than 2 ounces, but less than 4 ounces
Class A misdemeanor
Not more than 1 year in a county jail and/or a fine of not more than $4,000

*More than 4 ounces, but less than 5 pounds
State jail felony
180 days to 2 years in a state jail and/or a fine of not more than $10,000

*More than 5 pounds, but less than 50 pounds
Third-degree felony
2 to 10 years in a state prison and/or a fine of not more than $10,000

*More than 50 pounds, but less than 2,000
Second-degree felony
2 to 20 years in a state prison and/or a fine of not more than $10,000

*More than 2,000 pounds
Enhanced first-degree felony
5 to 99 years and a fine of not more than $50,000

Q: Does having a possession of marijuana conviction on my record affect my driver’s license?

A: Yes, you can be sentenced to a suspended driver’s license for up to six months following a conviction on any violation of the Texas Controlled Substances Act, which includes possession of marijuana.

What are the laws and penalties regarding marijuana possession?

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In my practice I am asked on a frequent basis what are the penalties regarding marijuana possession?

Marijuana-1114-thumb-200x282-thumb-200x282-thumb-200x282The penalties for marijuana possession are as follows:

Weight Classification Penalty

2 ounces or less: Class B misdemeanor; Not more than 180 days in a county jail and/or a fine of not more than $2,000.

More than 2 ounces, but less than 4 ounces: Class A misdemeanor; Not more than 1 year in a county jail and/or a fine of not more than $4,000.

More than 4 ounces, but less than 5 pounds: State jail felony; 180 days to 2 years in a state jail and/or a fine of not more than $10,000.

More than 5 pounds, but less than 50 pounds: Third-degree felony; 2 to 10 years in a state prison and/or a fine of not more than $10,000

More than 50 pounds, but less than 2,000: Second-degree felony ; 2 to 20 years in a state prison and/or a fine of not more than $10,000

More than 2,000 pounds: Enhanced first-degree felony; 5 to 99 years and a fine of not more than $50,000

A Recent Case Win–Evading the Police Case Dismissed

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972-562-7549 (Office)
bo@kalabuslaw.com (email)
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In addition to my retained clients, I also take court appointed clients in certain counties, to help citizens that can’t afford a lawyer from waiving their rights if they are facing criminal charges. I think it helps me keep things in perspective and it’s a great way to give back to the community. It can be difficult work at times, but it can be extremely rewarding, such as the case here. This particular client was accused of evading the police. But as always, there is more to the story.
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The client had been on probation for another charge out of Gregg County for a period of 8 years. He had two years to go on the probation and had since been living in the Metroplex area. Following his move to the area, he turned his life around from the trouble he had been in when he was young. He was employed and doing well. He was also doing well on probation and staying out of trouble, except that he needed to finish a class as a condition to probation that he had not yet finished.

The day of incident started like any other day with the client going to work. Following work the client had planned to check in with his probation officer, then hit the grocery store before going home. He never made it to the grocery store. When checking in with his probation officer, he was greeted with a “You did not finish the class in time as a condition to your probation. You are going to spend the next 10 years in a box!” Of course the box meant prison! Imagine that–you have served 8 years of probation, got your life back on track, and just like that you have someone taunting you with your freedom. My client was then told that there was a warrant for his arrest and they were going to take him away right there. Of course my client went into a full blown panic and started running for the door. The police caught him and apprehended him in the parking lot.

Instead of just letting Gregg County take my client to decide the issue of the probation revocation, where he was facing 10 years prison time, the Metroplex county decided to charge him with evading for running from the probation officer where he could face up to one year in jail. The evading charge would first have to be prosecuted here in the Metroplex County first before he could go on to Gregg County where his ultimate fate on the 10 years in prison would be decided.

As you can imagine, the client had very limited financial means and was sitting in jail unable to post a bond when I was appointed to represent him. The client had to wait in jail for 30 days until the case was filed–with the Metroplex County footing the bill for this. Once a person gets this kind of jail back time credit, it is very tempting for the person to take any of deal for time served to just get out of jail. The big issue with this approach is it would have been another conviction on his record. I encouraged my client to stand his ground, because I thought we could make something happen if we hung in there on his case.

Once the case was filed, I focused on the issue of whether the client was truly under arrest at the time–you can’t evade if you aren’t really under arrest. Following negotiations with the prosecuting attorney, who really saw the bigger picture, the State dismissed the case against my client.

Sometimes it really pays to stand your ground. Instead of an evading conviction on his record, my client has the case dismissed and has the opportunity to clear the charge from his record. As you can imagine, my client was relieved and very pleased with the result.

A Recent Case Win–DA Reduces Greater than 0.15 BAC DWI Class A Misdemeanor to a Class B Misdemeanor.

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bo@kalabuslaw.com
www.rosenthalwadas.com
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My client was arrested for DWI following a traffic stop. A subsequent blood test alleged my client’s blood alcohol level (BAC) at the time of the test was .217, which resulted in my client being charged with a first offense DWI with a BAC higher than 0.15 (keep in mind the legal limit is .08). Under current law, if a person’s BAC is above a 0.15, the charge is elevated to a Class A misdemeanor which enhances the punishment range to a fine from $0 to $4,000 and from 0 days to 1 year in jail (which may be probated) regardless of whether it is a first offense. The charge also requires that a person have a deep lung device (DLD) installed on their car for the length of probation. The DLD is a portable breathalyzer that a person will need to blow into before they can start their car.

The “0.15 BAC and above” enhancement also has significant impact on the surcharges that DPS will levy on a person following a DWI conviction. If a person’s BAC is above 0.15, then the surcharge to maintain a driver’s license will be $2,000 a year for a three-year period following the conviction.

I went to work on the case, investigating the facts to gain what leverage we could to negotiate with the prosecutor. After several weeks of hard work on the case I was able to identify some weaknesses in the blood analysis. As a result, the prosecutor agreed to lower the charges from the greater than 0.15 BAC Class A misdemeanor level to a Class B misdemeanor, or a DWI below 0.15 BAC offense level. This reduction was significant considering it dropped the potential punishment range down to a fine that would range from $0 to $2,000 and from 72 hours to 180 days in jail (which was be probated in this case). Better yet, the client will not have to pay $6,000 in DPS surcharges that would have followed the conviction.

As you can expect, my client was relieved and very pleased with the result.

If Police Smell Marijuana Coming From My Car Can It Be Searched Without a Warrant?

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The answer is YES. In Texas, the odor of burned marijuana gives the police the probable cause necessary to perform a legal search. The situation usually presents itself during a traffic stop when an officer smells marijuana through the open window while speaking with the driver. The odor of marijuana either fresh or faint is a trigger point for the police to search a vehicle without first obtaining a warrant.

Most folks do not realize they have less 4th Amendment protection against an illegal search and seizure when they are in their vehicles. The main rationale is since cars are mobile, and they could depart before an officer can get a warrant from a judge to search the vehicle. Another thought is that since cars are regulated by state laws, and are also on public streets, drivers should have a reduced expectation of privacy compared to their homes. In short, your vehicle is NOT the same thing as your home.35iyp8

Am I Eligible for Deferred Adjudication?

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It all depends on the offense charged and the individual’s criminal history. There are several offenses where individuals are barred by law from receiving deferred adjudication. The majority of these offenses involve intoxication crimes. Specifically statutorily offenses under chapter 49 of the Texas Penal Code which are DWI, boating while intoxicated, flying while intoxicated, intoxication manslaughter, etc. A defendant is eligible for deferred if he or she has been charged with most any other offense.

The next hurdle is whether the District Attorney (DA) will be willing to offer deferred. The prosecutor assigned to the case makes this decision on a case-by-case basis. Some of the factors the prosecutor will consider are: the defendant’s criminal history, the nature of the crime, was it a violent offense, was a deadly weapon involved, were there any injuries etc. An experienced attorney can help convince the prosecutor to offer deferred adjudication by exposing weaknesses in the prosecutor’s case.

Recent Case Win-Reduction Granted on Possession of Marijuana Case

214-402-4364 Writ Bond Hotline
bo@kalabuslaw.com
www.rosenthalwadas.com
www.kalabuslaw.com
Office: 972-562-7549

The client was arrested for allegedly having possession of marijuana. The State of Texas believed it had a relatively easy case to prove. My client was charged with a Class B misdemeanor, which is punishable up to 180 days in jail and a $2,000 fine.

After working on the case to develop some of the issues that were helpful to his defense, I filed a motion to suppress the marijuana located during the search on the theory the officer’s stop of my client’s vehicle was unlawful, meaning that the officer stopped my client for no reason, or that he lacked probable cause to do so. I set the motion for hearing and as a result I was able to gain leverage in negotiations and prosecutor agreed to reduce the Class B charge to a Class C misdemeanor paraphernalia charge. This essentially reduced the offense to the equivalent of a traffic ticket, which is punishable by fine only–no threat of jail time. Moreover, the 6-month probation period is the non-reporting type of probation (basically just keep your nose clean during the probation period), which saves my client the fees associated with reporting probation. My client not only saved the money on fees, he also saved valuable time since he does not have to meet with a probation officer on a monthly basis. This reduction was a huge relief for my client and he was pleased with the result.

Can I Get a DWI Because of Marijuana or Other Drugs?

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In short, YES. You can still be charged and convicted of DWI even if you do not have a blood alcohol content score from a breath or a blood test. To win the case, the State must prove you were intoxicated and they can do this numerous ways. In Texas, “intoxication” is defined as not having the normal use of your mental or physical faculties by reason of the introduction of alcohol, a drug, a dangerous drug, or any combination. Thus, if an individual has lost the normal use of the mental or physical faculties by reason of the introduction of marijuana or any other drug, that individual can be charged with DWI. The roadside field sobriety tests are the tools the State uses to gather the majority of its evidence of loss of normal use.

In addition, to the DWI charge, if the police find any marijuana or other drugs in your vehicle or on your person you will most likely be charged with possession of a marijuana. Any arrest is a serious matter and you should consult with an experienced attorney on how to proceed with your case.

Bo Kalabus Named 2013 Texas Super Lawyer

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Bo Kalabus was named a Texas Super Lawyer for the second year in a row. See Bo’s Profile here. To learn about the Super Lawyer selection process, go here.

Top Texas Court Rules Death Row Inmate Can’t Be Forcibly Medicated

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A very interesting ruling came down from the Texas Court of Criminal Appeals on Wednesday declaring that Steven Staley, a mentally ill death row inmate, cannot be forcibly medicated for the purpose of making him competent for execution; and without medication, the judges decided, he is not competent to be executed. Read the full story here.