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Woodlands Criminal Defense Attorney - Possession of Marijuana

Updated: May 2, 2023

Woodlands Criminal Defense Attorney - Possession of Marijuana Lawyer Brian Foley - Board Certified in Criminal Law.

Possession of Marijuana is still a crime in Texas. And it is enforced in The Woodlands, Texas as aggressively as anywhere else in the state. Possession of Marijuana is a class B misdemeanor punishable by up to 180 days in jail and up to a $2000 fine. There are also potential driver's license consequences including a suspension between 180 days and 1 year.

Sec. 521.372.  SUSPENSION OR LICENSE DENIAL.  (a)  A person's driver's license is automatically suspended on final conviction of:
(1)  an offense under the Controlled Substances Act;

The most common way that people are arrested in The Woodlands, Texas for Possession of Marijuana is through a traffic stop. The police may stop a vehicle if they have reasonable suspicion that a criminal offense has occurred. Typically this is a traffic offense but it doesn't have to be.

Reasonable Suspicion

"A police officer has reasonable suspicion to detain if he has specific, articulable facts that, combined with rational inferences from those facts, would lead him reasonably to conclude that the person detained is, has been, or soon will be engaged in criminal activity." Derichsweiler v. State, 348 S.W.3d 906, 914-15 (Tex. Crim. App. 2011).

Reasonable suspicion is determined as an objective standard. You are supposed to disregard the actual thoughts of the police officer making the arrest and instead see if there is an objectively justifiable basis for the detention. Id. Courts will also look at the totality of the circumstances. This means that circumstances that seem innocent when taken alone may be combined to predict criminal conduct. Id.

Here are some frequent examples of reasonable suspicion for traffic offenses in Possession of Marijuana cases in the Woodlands, Texas:

  1. Speeding,

  2. Failing to signal a lane change,

  3. Vehicle registration sticker issues,

  4. Invalid or obscured license plate, or

  5. Parking for a long time in a residential area in a suspicious manner.

This last type of reasonable suspicion is often used for a stop when someone has been parked in a residential area for a long period of time. But you may be in luck if this is the type of fact pattern of your case. In State v. Garcia an officer " . . . decided to 'investigate' the presence of [a person's] truck parked at the dead-end portion of [a road] . . .” State v. Garcia, 253 S.W.3d 236, 244 (Tex. Crim. App. 2008). The Officer []initiated the incident by blocking [the] exit with his patrol car, turning on his spotlight, approaching [the] truck with a long flashlight playing over the driver's side, immediately saying, 'What are you doing here?', using his flashlight to wave the passenger back to the rear of the truck, and, standing toe-to-toe [], shining his flashlight into appellee's eyes." Considering all of this "it is hard to conclude that any reasonable person would feel free to drive or walk away or to terminate the questioning." State v. Garcia, 253 S.W.3d 236, 249 (Tex. Crim. App. 2008).

This means that the officer lacked reasonable suspicion and initiated an investigation and detention which was unlawful according to the Court of Criminal Appeals of Texas. The highest court for criminal cases in Texas.

Arguing the law from these decided opinions is how we win cases for our clients at Brian Foley Law PLLC. If the police lack reasonable suspicion for the traffic stop then any evidence collected after this cannot be used in court according to the exclusionary rule. "No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case." Tex. Code Crim. Proc. art. 38.23.

The second part of a Possession of Marijuana case defense is looking at what happens as the police officer approaches the door of the car or the home and how they obtain probable cause to search. "[T]he automobile exception to the Fourth Amendment warrant requirement” means that if the police have probable cause to search your vehicle then they may do so without a warrant. Marcopoulos v. State, 538 S.W.3d 596, 599 (Tex. Crim. App. 2017). If they lack probable cause the search is likely illegal.

Odor of Marijuana as Probable Cause

The Courts have repeatedly ruled that an officer's statement that they smell marijuana in or around the vehicle will result in probable cause to search. In Polk v. State the defendant argued that because the officer did "not find marijuana in the interior of the vehicle, he did not have probable cause to search the trunk. This argument [was held to be] without merit. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. See Osban v. State, 726 S.W.2d 107, 110-11 (Tex.Crim.App. 1986) (en banc). Polk v. State, No. 14-05-00793-CR, (Tex. App. Jul. 25, 2006).

Recent Developments with Industrial Hemp

The State of Texas since 2019 has run an Industrial Hemp Program. This program is based on Texas Agriculture Code 121.001. This Code provides the definition of "Industrial Hemp."

Sec. 121.001.  DEFINITION.  In this chapter, "hemp" means the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.
Added by Acts 2019, 86th Leg., R.S., Ch. 764 (H.B. 1325), Sec. 2, eff. June 10, 2019.

The State of Texas since 2019 has run an Industrial Hemp Program. This program is based on Texas Agriculture Code 121.001. This Code provides the definition of "Industrial Hemp." So one potential attack moving forward in the courts of the State of Texas is attacking probable cause based on the odor of marijuana because this odor could be indistinguishable from the odor of "hemp." The possession of "hemp" is not illegal and officers would have no way of determining if the delta-9 THC concentration is greater than 0.3 percent on a dry weight basis.

Dismissal Through Other Means

The final step in defending a possession of marijuana case in The Woodlands, Texas is an analysis of the arrested citizen's contribution to society and ability to complete other terms or conditions for a dismissal. Any time you are arrested for possession of marijuana our goal is to get your case expunged from your record. This means that not even the police can see that the arrest occurred in the future if you are pulled over. There is no requirement that the District Attorney's Office dismiss the case under a legal issue related to reasonable suspicion or probable cause. They can also dismiss a case in the interest of justice or upon the condition of completing certain terms outlined in an informal agreement between your attorney and the District Attorney's Office. These terms could include:

  1. Community Service

  2. Online or in person classes related to drug addiction awareness

  3. Donation to Charity or a Food Bank

  4. Completion of a period of time without a new arrest or ticket

There are many considerations for your lawyer to evaluate when you are dealing with a possession of marijuana arrest in The Woodlands, Texas. You should protect your record and protect your future by calling a board certified criminal defense attorney today.


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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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