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Montgomery County Criminal Defense Attorney - Possession of Marijuana

Montgomery County Criminal Defense Attorney Brian Foley on the topic of Possession of Marijuana (Spelled Marihuana in the Texas Health and Safety Code)


Possession of Marijuana is becoming increasingly rare as younger generations flock to things like vape pens and cbd or thc waxes. So what happens now if you are found by a police officer with regular marihuana in plant form? It depends on how much you have and where you are found with it.


  1. A roach - If you have been found with a single rolled marihuana cigarette or a "joint" that has been smoked down to a very small remaining portion then you may be caught with what is called a "roach." The Texas Health and Safety Code 481.121 makes the possession of "a usable quantity" of marijuana illegal. However many times it will be up to the discretion of the police officer deciding if a roach or a very small amount of marijuana or "shake" is worth making an arrest. There are times where police officers will not make an arrest. In Harris County all misdemeanor levels of marijuana are refused by the District Attorney's Office. In Montgomery County they are not and you could end up being arrested.

  2. A joint - You are more likely to be arrested if there is a full marijuana joint found in your possession. The key part of the case will be the determination of the traffic stop and if there are "affirmative links" to you which create evidence beyond a reasonable doubt. In Montgomery County the finding of a full joint that has been unsmoked or used is very likely to end in an arrest and the filing of criminal charges. In Harris County the case will not be filed.

  3. A baggie of marijuana or jar of marijuana - If you have a larger amount of Marijuana between 2-4 ounces the offense is punishable as a Class A misdemeanor. Some drug offenses in the Health and Safety Code can be charged as a higher offense called Possession with Intent to Deliver. However for Marijuana there is no such offense of possession of marijuana with intent to deliver. There is only a charge of actual delivery of marijuana. Officers are not frequently doing sting operations related to the sale of marijuana alone. This means that it is very unlikely that you will be charged or treated as a drug dealer if you are only dealing between 2-4 ounces of marijuana at a time.

Sec. 481.121. OFFENSE: POSSESSION OF MARIHUANA. (a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana. (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 marihuana possessed is four ounces or less but more than two ounces; (3) a state jail felony if the amount of marihuana possessed is five pounds or less but more than four ounces;


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