Criminal Lawyer Arlington, TX

You probably already know that marijuana is illegal in Texas, but how strongly are marijuana laws actually enforced? This article seeks to answer that question and also give you a firm understanding of what constitutes the offense of possession of marijuana.

Marijuana is now legal for recreational use in 10 states while marijuana for medical use is legal in 33 states. Nationally, marijuana is still illegal, but it is not enforced (or if it is it is a very large amount, such as drug smugglers or those who cross the borders with marijuana). Texas still outlaws marijuana use for all reasons, at least for the time being. Given the statistics, the research, and the different uses of marijuana, why is it not only illegal in Texas but also prosecuted?

In Texas, possession of any amount of marijuana is illegal, but the punishment depends on how much you have in your possession as well as the specific facts of your case and your criminal history. Before we talk about the punishment ranges, it is important to know the definitions and elements of this offense. “Possession” is defined in the Texas Penal Code as the “actual care, custody, control, or management” of marijuana. While you do not have to be physically touching the marijuana to be “possessing” it, you do have to be in control of it or have the ability to control it. For instance, if marijuana is in the center console of a vehicle with four passengers, legally speaking, all four are “possessing” it. What about if you are a back seat passenger and it was the front seat passenger who bought it and placed it there without your knowledge? Well, you could arguably and unfairly be in possession of the marijuana, but you are legally not guilty because you were not “knowingly” possessing it You have to both be in possession and knowingly be in possession of marijuana (or another drug for that matter) for you to be guilty of possession. Also, possession is not ownership. Just because someone else bought the marijuana and you happened to be holding it right when the police arrive, you are still guilty of the offense.

Whether you are knowingly in possession of marijuana or even if you aren’t but the police say you are, then the level or degree of offense depends on the weight of the marijuana. Ironically, the offense itself is not even listed in the Texas Penal Code. Instead, it is listed in Section 481.121 of the Texas Health and Safety Code. If there is a “usable amount” of marijuana, i.e. the smallest amount that a person could theoretically use, then any amount from a usable amount to 2 ounces is a class b misdemeanor (up to a $2000 fine and up to 6 months in county jail or up to 2 years’ probation); 2 ounces to 4 ounces is a class a misdemeanor (up to a $4000 fine and up to one year in county jail or up to 2 years’ probation); 4 ounces to 5 pounds is a state jail felony (up to a $10,000 fine and anywhere from 6 months to 2 years in state jail or up to 5 years’ probation); 5 pounds to 50 pounds is a third degree felony (anywhere from 2 to 10 years in prison and up to a $10,000 fine or up to 10 years’ probation); 50 to 2,000 pounds is a 2nd degree felony (up to a $10,000 fine and 2 to 20 years in prison or up to 10 years’ probation); and finally more than 2,000 pounds is a first degree felony (up to a $50,000 fine and 5 to 99 years or life in prison or up to 10 years’ probation). If you are selling or manufacturing marijuana, the penalty ranges only goes up. Also, other forms of marijuana, such as oil or wax, are automatically felonies, regardless of amount.

So now that we have a firm understanding of what constitutes the offense of possession of marijuana and the punishment ranges, do police and prosecutors even care? The answer is resoundingly yes. If you are a felon and have even the smallest amount on you, then the prosecutor will hold your past against you and maybe only offer you jail time.Depending on your actions at the time of arrest, you may be facing an unreasonable prosecutor. What are your choices if the offer is unreasonable? You can a) accept the offer; b) plead open to the judge and ask the judge for mercy; or c) take the case to trial in front of a jury. If you plead open to the judge, you have to admit that you are guilty then it is up to the judge to assess whatever punishment he or she deems fit. The prosecutor will have the chance to tell the judge about the facts of your case and your criminal history. It is a huge risk pleading open to the judge, but it could pay off if you face an unreasonable prosecutor. Finally, you can take the case to trial. Given the sentiment about marijuana, going to trial should not be as scary as most would think. First of all, most people think marijuana should be legal so you have a chance of being found not guilty. Second, even if you are found guilty, the punishment should not be as severe as would possession of methamphetamine or heroin. However, you never  know what a jury will do so there is a huge risk and the choice ultimately is up to you.

If marijuana is legal in 5 or 10 years, what will that mean for past marijuana cases as well as the future? If you were convicted of possession, then that conviction will stand unless you get it overturned or are pardoned. Just because marijuana becomes legal does not mean that all previous convictions are now “expunged” and off your record. Furthermore, those individuals who are on probation for marijuana would still be legally required to carry out their probation term, unless the judge commutes the probation and terminates them early. I foresee judges terminating probation early across the board but if a judge is unwilling to do this then you need a good criminal lawyer Arlington, TX offers at Brandy Austin Law Firm, PLLC to advise you on how to save so much of your time and money when you’re on probation for something that is now legal. For future cases where the police find you in possession of marijuana, you cannot be arrested. However, are you committing any other offense at the same time? Do you think the police might use the fact that they smell marijuana to try to detain you longer to look for other drugs, guns, or reasons to arrest you? They could, so be careful. Personally, I think marijuana will be legal in Texas in the next decade or two at the most. In the meantime, be smart about your choices.

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