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) 271-2800, anytime.  If you have to leave a message, certainly a lawyer will return your call.  Note, that Cook & Cook 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 the 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 4 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 you 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 you the quantity of marijuana was not USABLE (ie 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 US.

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 at court.  If you have been charged with the most common offense of “possession with less than 2 grams of marijuana” then you will likely be offered 1 year of deferred adjudication probation.  You will not be forced to spend any time in jail aside from the 8-12 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 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 marihuana 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 5 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 5 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 many defenses to the possession of marijuana crime in Texas which we will cover briefly here.

Defense 1 You Did Not KNOW You Had the 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 was not possessing any marijuana in that moment.

If you have a similar situation to this and are facing possession of marijuana charges, give our criminal defense attorneys in San Antonio Texas a call (210) 271-2800

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 5th 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 WERE possessing 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 call help you. Call us 210-271-2800

Defense 4 There Was Not a USABLE Quantity of the Drug

For this defense, a person would argue that there were merely miniscule traces of the drug, but that no one could in anyway ingest such a small amount.  Because the law requires that the possession be that of a usable quantity, you would not be guilty if you could prove the miniscule amount defense.  Yet, as you will note in the below chart, possessing less than 1 gram of marijuana is indeed a class B misdemeanor offense in Texas.  So, having a little bit is not a defense, having such a little bit that you can’t use it is the defense.

Defense 5 THE BIG BIG DEFENSE in MARIJUANA LAW: THE SEARCH WAS IN VIOLATION OF THE 4th 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, that the officer found out about it, in an illegal way.  Therefore, because you broke the 4th 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 officer finds will be thrown out of evidence.  Likewise, if an officer stops and searches a person, and had no lawful reason for doing so, then the evidence discovered therefrom will be suppressed from evidence.

This violation of the 4th 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 4th amendment, many officers (according to my several hundred 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 4th amendment defense, it is the most significant among the family of marijuana defense strategies.

The criminal defense section of the Cook & Cook Law Firm defends possession of marijuana cases regularly in Bexar County, Texas.  Call us.  We can help. 210-271-2800.

Marijuana Defense Resources

Washington Defenses

Contact a San Antonio Marijuana law Defense Lawyer

Marijuana Law Jail Time Chart


jail/prison time (max)

Fine max
Possession of marijuana law (texas)
2 oz or less* class B misdemeanor 180 days $2,000
2 to 4 oz* class A misdemeanor 1 year $4,000
4 oz to 1 lb* state jail felony 180 days – 2 years $10,000
1 to 5 lbs state jail felony 180 days – 2 years $10,000
5 to 50 lbs felony of the third degree 2 – 10 years $10,000
50 to 2,000 lbs felony of the second degree 2 – 20 years $10,000
More than 2,000 lbs felony 5 – 99 years $50,000
Sale
Gift of 1/4 oz or less class B misdemeanor 180 days $2,000
Sale of 1/4 oz or less class A misdemeanor
1 year
$4,000
1/4 oz to 5 lbs state jail felony
180 days – 2 years
$10,000
5 to 50 lbs felony of the second degree 2 – 20 years $10,000
50 to 2,000 lbs felony of the first degree 5 – 99 years $10,000
2,000 lbs or more felony MMS 10 – 99 years $100,000
To a minor felony 2 – 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 1 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 MARIHUANA. (a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally delivers marihuana. (b)  An offense under Subsection (a) is: (1)  a Class B misdemeanor if the amount of marihuana delivered is one-fourth ounce or less and the person committing the offense does not receive remuneration for the marihuana; (2)  a Class A misdemeanor if the amount of marihuana delivered is one-fourth ounce or less and the person committing the offense receives remuneration for the marihuana; (3)  a state jail felony if the amount of marihuana delivered is five pounds or less but more than one-fourth ounce; (4)  a felony of the second degree if the amount of marihuana delivered is 50 pounds or less but more than five pounds; (5)  a felony of the first degree if the amount of marihuana 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 marihuana 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 MARIHUANA 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 marihuana and the person delivers the controlled substance or marihuana 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 marihuana 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 marihuana 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 Marijuana Law (Great National Resource)

Marijuana (and other drugs) rehab in Texas

Marijuana Law Punishment Chart in Texas

Outcome of Marijuana Charges

Need a Lawyer?  Call us

Marijuana Law Consultation Video Cartoon

(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) 271-2800.

Summary
Marijuana Attorney & Client Consultation Cartoon
Title
Marijuana Attorney & 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.

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