Marijuana–Criminal Justice Minute
Possession of marijuana in Texas is illegal despite several other states having recently legalized it for recreational use. Even if marijuana was purchased and possessed legally in the ten or so states that have legalized recreational marijuana use and possession, it cannot legally be brought across state lines into Texas, and can’t be legally used here.
In Texas, possession of up to 2 ounces of marijuana is a Class B misdemeanor is punishable by up to six months confinement, a $2000 fine, or both confinement and fine. Possession of 2 to 4 ounces of marijuana is a Class A misdemeanor is punishable by up to one year confinement, a $4000 fine, or both confinement and fine. Possession of marijuana over 4 ounces is a felony. In addition to statutory penalties, a person finally convicted of marijuana possession will have their driving privileges administratively suspended for up to one year with additional administrative penalties and fees required for reinstatement.
The typical marijuana case is made by a police officer who legally stops a motor vehicle for a traffic infraction, and while speaking with the driver the officer detects the smell of either burnt or raw marijuana, which has a distinctive pungent aroma that police officers are trained to detect. Once the officer detects this aroma the officer can legally order the driver and all occupants to exit the vehicle, which may then be legally searched for contraband marijuana. If marijuana is found, depending upon the location of the marijuana in the vehicle, the driver and any passenger may be arrested for its possession. The state will be required to prove actual care, custody, control or management of the marijuana and a rational connection between the marijuana and the defendant.
Marijuana cases are also made in our schools when teachers or school security personnel have a reasonable suspicion that a student is in possession of marijuana. In that case, the student’s locker, brief case and backpack may be legally searched without a warrant.
The DA’s Office has recently established a marijuana arrest and charging policy for misdemeanor possession. After arrest and establishing positive identification of the suspect, and if no other charges for other offenses are filed or pending, the police agency will notify the arrestee that if they agree in writing to voluntarily present themselves to the DA’s office to take a drug awareness class and perform community service, no formal charges will be filed and there will be no arrest record. If the suspect fails to report to the DA’s office as agreed, formal charges are then filed and an arrest warrant will be issued.
If marijuana possession charges are filed, most defendants will likely be released by the Harris County Sheriff on personal recognizance on their promise to appear in court the next business day. Some defendants may be required to post bail depending upon whether there are other more serious charges filed or pending.
Once a defendant appears in court on their marijuana case, their bail will be evaluated by a judge and conditions of release may be ordered, including periodic or random drug testing, drug counseling, and curfews. If a defendant can’t afford an attorney one will be appointed by the court. If the defendant is not indigent, they’ll be given 2-3 weeks to hire an attorney.
Marijuana cases are typically resolved by plea bargain and there are many options available, from the least restrictive pre-trial diversion or intervention programs or deferred adjudication programs without a finding of guilt, to more restrictive options like straight probation with many conditions of supervision, and the most restrictive being jail confinement and fines.
In a very few cases, the charges are dismissed because of insufficient evidence or stop and search issues; and a few cases are tried to a jury or court to a verdict. Once a case has been tried to a verdict, deferred adjudication and diversionary options are no longer available.
Possession of synthetic marijuana, known on the street as “spice,” “K2,” and “Kush,” is illegal in Texas and is as punishable as marijuana is depending upon the weight possessed.
If you, a family member or friend is charged with any of these offenses, please contact an attorney as soon as possible for current and thorough legal advice and counsel. Once these cases have been adjudicated or there is a plea agreement, our courts are trained to work with defendants to develop a program that best serves them so that they can make better choices should they encounter these substances again.