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  • Writer's pictureBrian Foley

Conroe Criminal Defense Attorney - Possession of a Controlled Substance Penalty Group 2

Conroe Criminal Defense Attorney - Brian Foley

Howdy, I'm Brian Foley your friendly neighborhood and (cough) board certified, Criminal Defense Attorney. I am sure you never wanted to hire someone like me but if you are reading this article I'm glad to tell you that we Criminal Defense Attorney's don't bite, and we're generally pretty nice people. We have an important job. We help people who have gotten into a situation that they never expected. If you have been arrested for Possession of a Controlled Substance Penalty Group 2 in Montgomery County, Texas then you've come to the right place. Let me guess what happened?

  1. You got pulled over while driving or as a passenger in a vehicle.

  2. The officer asked for consent to search or said that he smelled marijuana and told you he was going to search.

  3. a vape pen with THC, was found in your vehicle either in the center console or underneath your seat very near to you.

  4. You have little to no criminal history and want to get the case dismissed.

How can I guess that's what has happened or is pretty close to what has happened? Because I used to be a prosecutor with the Montgomery County and Harris County District Attorney's Offices and I've seen about 30,000 criminal case files. That's a guess. It is probably too low but at some point I lost count.

So how are we going to save you? The first thing we will want to do is look at the reason for the traffic stop. If the police do not have reasonable suspicion to believe that a traffic offense has occurred then the remainder of the evidence that was gathered against you, including statements that you may have made, can be thrown out. If the prosecutors won't dismiss the case we could challenge a traffic stop by going to a suppression hearing in front of the judge. If that doesn't work we could challenge the same issue at a jury trial and request a 38.23 instruction and allow the jury to throw out the evidence in your case and set you free. Really. That is part of the law in Texas. God Bless our wonderful State.

The next thing we will want to do is look at affirmative links to see if the prosecution can prove knowledge of illegal substance, likely THC. If the prosecution doesn't have evidence of affirmative links showing your knowing and intentional possession of the item then the case could be won on that ground as well.

Why was I arrested for a felony when we are talking about marijuana and THC?

The Texas Health and Safety Code defines marijuana and THC differently. Marijuana is the plant cannabis sativa L with a Delta-9 THC content of greater than 0.3 % (Otherwise its hemp and not illegal)

But when the Delta-9 THC has been taken from the plant and put into a vape cartridge or brownies, or a gummy or anything really then it is tetrahyrdocannabinol and it gets charged under Penalty Group 2. Possession of a Controlled Substance Penalty Group 2 is a State Jail Felony if you possess less than 1 gram. Between 1-4 grams it is a Third Degree Felony. If you have more than 4 grams forget the scenario I gave you above we need to talk and have a consultation because your case is going to be taken more seriously and they are going to think you were possessing it with the intent to distribute

Tetrahydrocannabinols, other than marihuana, and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as:
delta-1 cis or trans tetrahydrocannabinol, and their optical isomers;
delta-6 cis or trans tetrahydrocannabinol, and their optical isomers;
delta-3, 4 cis or trans tetrahydrocannabinol, and its optical isomers; or
compounds of these structures, regardless of numerical designation of atomic positions, since nomenclature of these substances is not internationally standardized;

What do I do if I'm totally guilty of this but I don't want it to ruin my future? Even if you are totally guilty of possessing a controlled substance in penalty group 2 then you can still complete conditions for a dismissal or complete a deferred probation which makes it possible to report that you have never been convicted of an offense! Negotiations with the District Attorney's Office can be successful for you even if you have admitted to your guilt to the police.

How do I get started.

Well you need to hire a lawyer but that is to take care of your legal troubles. You may be experiencing personal stress in your life because of your legal case. The best advice I've ever gotten in this facet is to just take the next step. We cannot change what has happened in the past. We can only do the best that we can right now with the circumstances that we have been given. Take a moment for yourself and think about your next step. It may be cleaning the dishes, or finishing the laundry, or making a list of attorney's to call. But don't forget that it might be to take a minute and forgive yourself so that you can move on to making things right.


For litigants who do not have counsel: Reading this blog post does not create an attorney client relationship. Call to set up a free consultation.

For the general public: This Blog/Web Site is for educational purposes only and it provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that there is no attorney-client relationship created. Don't just read this as a substitute for competent legal advice from a licensed attorney.

For attorneys: This Blog is informational and educational in nature and is not a substitute for Westlaw or other research and consultation on specific matters pertaining to your clients. As you know the law can change day to day based on recent case opinions. And unfortunately you shouldn't cite it in court as binding authority because it is not. Mention it to your friends, just seek real consultation if its something important.

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