Marijuana Law (Texas) Defense Strategy
This article includes various marijuana laws, as enclosed below. If you are in need of a Bexar County marijuana defense lawyer, we’d be glad to assist you. Please call us at 210-740-0281 anytime. If you have to leave a message, a lawyer will certainly return your call. Note that The Cook Law Firm & Associates PLLC offers criminal defense for Bexar County and closely surrounding counties only.
Possession Of Marijuana
The most common type of crime committed in the context of marijuana is a crime called possession of marijuana. In order to be guilty of this, a person has to:
- Knowingly (or intentionally)
- Possess
- A quantity of marijuana
- Which is usable
If all four of these parts of the marijuana crime cannot be proven against a defendant, then the person is not guilty of possessing marijuana. Thus, if you had marijuana but did not know you had it, you are not guilty. If you were not possessing (or exercising care custody control) over the marijuana, you are not guilty. If the quantity of marijuana was not usable (i.e., you could not ingest it), you are not guilty of possessing marijuana. This is the very specific marijuana law that will apply to you in Texas. If you are interested in seeing laws in other states, go here: marijuana laws in the U.S.
What If You Are Guilty Of Possessing Marijuana In San Antonio, Texas? (Are You Going To Jail?)
While this post covers some ways to defend against marijuana charges in Texas, sometimes defendants face the unfortunate circumstance of not having any defense to the charges. You were caught red-handed, and now you just want to know what will happen in court. If you have been charged with the most common offense of “possession with less than two grams of marijuana,” then you will likely be offered one year of deferred adjudication probation. You will not be forced to spend any time in jail aside from the eight to 12 hours necessary to arrest you and then post bond. In other words, if you are guilty of the crime and you do not have any defense, then you will have to enter into a plea bargain agreement with the district attorneys in Bexar County. The plea agreement will be for the sort of probation that does not result in a criminal conviction on your record.
Here is the actual marijuana law from the Texas Penal Code:
Sec. 481.121. OFFENSE: POSSESSION OF MARIJUANA.
(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marijuana.
(b) An offense under Subsection (a) is: (1) A Class B misdemeanor if the amount of marijuana possessed is two ounces or less; (2) A Class A misdemeanor if the amount of marijuana possessed is four ounces or less but more than two ounces; (3) A state jail felony if the amount of marijuana possessed is five pounds or less but more than four ounces; (4) A felony of the third degree if the amount of marijuana possessed is 50 pounds or less but more than five pounds; (5) A felony of the second degree if the amount of marijuana possessed is 2,000 pounds or less but more than 50 pounds; and (6) Punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than five years, and a fine not to exceed $50,000, if the amount of marijuana possessed is more than 2,000 pounds.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 2.02, eff. Sept. 1, 1994.
Defenses To Possession Of Marijuana Law
Just because you have been charged with possessing marijuana does not make you guilty of possessing marijuana. There are many defenses to the possession of marijuana crime in Texas, which we will cover briefly here.
Defense 1: You Did Not Know You Had Marijuana
Sara gave her purse to John to hold while she went to use the lady’s room. While she was gone, John was searched by police. The police searched John’s purse, which they assumed was his because he was holding it. When they searched John’s purse, they found Sara’s marijuana. John is not guilty of violating the marijuana law because he did not know he was holding marijuana. Sara, likewise, was not guilty at that time of possessing marijuana (arguably) because she did not possess any marijuana at that moment.
If you have a similar situation and are facing possession of marijuana charges, give our criminal defense attorneys in San Antonio, Texas, a call at 210-740-0281.
Defense 2: You Were Not Possessing Any Marijuana
Here is an example of this defense to the marijuana charge: Alex went to HEB and bought mint leaves for her tea. The police pulled her over and searched her. They then arrested her when they found the mint leaves. They accused Alex of violating the law against the possession of marijuana. Alex utilized his Fifth Amendment right to remain silent and did not tell the officers it was merely mint leaves they had found. In this case, your criminal attorney will have the marijuana tested at the lab, and because it was mint and not marijuana, the lab test would likely result in a dismissal of the charges.
Defense 3: There was Marijuana But You Were Not Possessing It Per Se
In this example, you are driving your friend John to the movies. You are pulled over. Your vehicle is searched, and marijuana is found under the passenger’s seat of the car. You were not exercising care, custody or control over that marijuana because it was John’s marijuana that John was controlling. This type of defense will likely result in a jury trial in San Antonio, Texas, because some people would say you possessed that marijuana in your car, even though it was John’s, and others would say you were not exercising control over it. In this defense, you will exercise your right to have a jury trial.
If you have a situation similar to this and you are in South Texas, our criminal defense attorneys can help you. Call us at 210-740-0281.
Defense 4: There Was Not A Usable Quantity Of The Drug
For this defense, a person would argue that there were merely minuscule traces of the drug but that no one could in any way ingest such a small amount. Because the law requires that possession be of a usable quantity, you would not be guilty if you could prove the minuscule amount in defense. Yet, as you will note in the below chart, possessing less than one gram of marijuana is indeed a Class B misdemeanor offense in Texas. So, having a little bit is not a defense, but having such a little bit that you can’t use it is a defense.
Defense 5: The Big Big Defense In Marijuana Law: The Search Was In Violation Of The Fourth Amendment Right Against Unreasonable Searches And Seizures
This is the most prominent and commonly used defense in marijuana cases among them all. Essentially, in this situation, your criminal attorney will be arguing that, yes, you had possession of marijuana. But the officer found out about it in an illegal way. Therefore, because you broke the Fourth Amendment, we will throw out the discovered marijuana as if you never found it in the first place. The defense theory here rests entirely on the fact that officers cannot stop a person without a reasonable suspicion that they have violated a law. If the officer stops a person without reasonable belief that the person violated the law, then anything that the officer finds will be thrown out of evidence. Likewise, if an officer stops and searches a person and has no lawful reason for doing so, then the evidence discovered therefrom will be suppressed.
This violation of the Fourth Amendment, though important, is extremely difficult to prove. Most police officers are trained to understand the standards that they must follow in order to properly search a person for drugs. And, even if the officer violates the standards set out in the Fourth Amendment, many officers (according to my 700 clients from San Antonio, Texas) lie about what actually happened that led to the search in their police reports.
Despite the numerous obstacles and factors involved in the Fourth Amendment defense, it is the most significant among the family of marijuana defense strategies.
The criminal defense section of The Cook Law Firm & Associates PLLC defends possession of marijuana cases regularly in Bexar County, Texas. Call us at 210-740-0281. We can help.
Marijuana Defense Resources
Contact a San Antonio marijuana law defense lawyer.
Marijuana Law Jail Time Chart
 |
|
Jail/prison time (max) |
Fine max |
| Possession of marijuana law (Texas) |
|||
| Two ounces or less | Class B misdemeanor | 180 days | $2,000 |
| Two to four ounces | Class A misdemeanor | One year | $4,000 |
| Four ounces to one lb | State jail felony | 180 days – two years | $10,000 |
| One to five lbs | State jail felony | 180 days – two years | $10,000 |
| Five to 50 lbs | Felony of the third degree | Two – 10 years | $10,000 |
| 50 to 2,000 lbs | Felony of the second degree | Two – 20 years | $10,000 |
| More than 2,000 lbs | Felony | Five – 99 years | $50,000 |
| Sale |
|||
| Gift of 1/4 ounce or less | Class B misdemeanor | 180 days | $2,000 |
| Sale of 1/4 ounce or less | Class A misdemeanor |
One year
|
$4,000 |
| 1/4 ounce to five lbs | State jail felony |
180 days – two years
|
$10,000 |
| Five to 50 lbs | Felony of the second degree | Two – 20 years | $10,000 |
| 50 to 2,000 lbs | Felony of the first degree | Five – 99 years | $10,000 |
| 2,000 lbs or more | Felony | MMS 10 – 99 years | $100,000 |
| To a minor | Felony | Two – 20 years | $10,000 |
| Within 1,000 feet of a school or within 300 feet of specified areas | Misdemeanor or felony | Increased penalty | Increased penalty |
| Miscellaneous (paraphernalia, license suspensions, drug tax stamps, etc.) | |||
| Paraphernalia possession | Class C misdemeanor | None | $500 |
| Paraphernalia sale | Class A misdemeanor | One year | $4,000** |
Other Marijuana Laws (dealing And Delivery To Child Laws)
The delivery of marijuana is also a crime promulgated in the Texas Health and Safety Code:
Sec. 481.120. OFFENSE: DELIVERY OF MARIJUANA.
(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally delivers marijuana.
(b) An offense under Subsection (a) is: (1) A Class B misdemeanor if the amount of marijuana delivered is one-fourth ounce or less and the person committing the offense does not receive remuneration for the marijuana; (2) A Class A misdemeanor if the amount of marijuana delivered is one-fourth ounce or less and the person committing the offense receives remuneration for the marijuana; (3) A state jail felony if the amount of marijuana delivered is five pounds or less but more than one-fourth ounce; (4) A felony of the second degree if the amount of marijuana delivered is 50 pounds or less but more than five pounds; (5) A felony of the first degree if the amount of marijuana delivered is 2,000 pounds or less but more than 50 pounds; and (6) Punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 10 years and a fine not to exceed $100,000 if the amount of marijuana delivered is more than 2,000 pounds.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 2.02, eff. Sept. 1, 1994.
It is a crime to deliver marijuana to a child:
Sec. 481.122.
OFFENSE: DELIVERY OF CONTROLLED SUBSTANCE OR MARIJUANA TO CHILD.
(a) A person commits an offense if the person knowingly delivers a controlled substance listed in Penalty Group 1, 1-A, 2 or 3 or knowingly delivers marijuana and the person delivers the controlled substance or marijuana to a person: (1) Who is a child; (2) Who is enrolled in a public or private primary or secondary school; or (3) Who the actor knows or believes intends to deliver the controlled substance or marijuana to a person described by Subdivision (1) or (2).
(b) It is an affirmative defense to prosecution under this section that: (1) The actor was a child when the offense was committed; or (2) The actor: (A) was younger than 21 years of age when the offense was committed; (B) delivered only marijuana in an amount equal to or less than one-fourth ounce; and (C) did not receive remuneration for the delivery.
(c) An offense under this section is a felony of the second degree.
(d) In this section, “child” means a person younger than 18 years of age.
(e) If conduct that is an offense under this section is also an offense under another section of this chapter, the actor may be prosecuted under either section or both.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 2.02, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 745, Sec. 27, eff. Jan. 1, 1998; Acts 2001, 77th Leg., ch. 251, Sec. 20, eff. Sept. 1, 2001.
Marijuana Law Resources
Links: San Antonio article on marijuana law history
State attempts at changing the marijuana law (Great National Resource)
Marijuana (and other drugs) rehab in Texas
Marijuana law punishment chart in Texas
Marijuana Law Consultation Video Cartoon
(The video offers defendants of marijuana charges insight as to how the typical legal consultation conversation goes.)
Need a criminal defense lawyer for your possession of marijuana case? Call us anytime at 210-740-0281.
Summary
Title: Marijuana Attorney And Client Consultation Cartoon
Description:
Texas lawyer Nolan holds a free consultation with a potential client who has been charged with possession of marijuana. The client would like to get his charges dropped or dismissed. The attorney talks to the client about some marijuana laws in Texas. The cartoon depicts the typical attorney-client consultation in Texas and is meant to be both informational and humorous.