Possessing marijuana is still illegal in Texas. In this short video, Fort Worth criminal defense attorney Benson Varghese breaks down how to beat possession of marijuana charges in court.
How can you beat a possession of marijuana case? Possession of marijuana is still illegal in Texas. If you have any usable amount of marijuana, you’re going to be charged with at least a class B misdemeanor. Two to four ounces is a class A misdemeanor, and over four ounces, it becomes a felony offense. However, possession of marijuana cases can be beaten in court and there are a number of ways this might happen.
First and foremost, the prosecution has to be ready to prove that a person intentionally or knowingly possessed marijuana. Let’s break that down. They have to intentionally or knowingly – meaning if you’re stopped in a car and there’s marijuana in the car that you knew nothing about, that is likely not going to be enough for the prosecution to be successful. It doesn’t mean you won’t get arrested. It doesn’t mean you won’t get charged, but you may have a valid defense that you did not intend to have marijuana or that the marijuana was not there with your knowledge.
The prosecution also has to prove that the substance in question was marijuana and as of the end of 2019, that has become a more complicated question. In 2019, the Texas legislature legalized hemp. Now, hemp and marijuana are the same plant, scientifically. The difference between hemp and marijuana is that marijuana has a higher concentration of THC, which is a psychoactive ingredient in marijuana.
Because hemp is now legal in Texas, prosecutors need to be able to distinguish between marijuana and hemp and they need reliable verifiable lab results that show the concentration of THC in the suspected substance. There are few arguably no labs in Texas that are actually qualified to do this quantification. That’s an ongoing battle that we’re fighting both at the federal and state level in a number of cases that we’re handling. The difficulty in proving that the substance is in fact, marijuana has made prosecutors more likely to consider alternative results.
For a misdemeanor possession of marijuana charge throughout North Texas, it’s not uncommon for us to be able to negotiate a very favorable result, including dismissals or admission into a diversion program. Our goal with a first-time possession of marijuana offense is to get your case dismissed and to set you up for a future expunction where your arrest record can be destroyed as well.
Felony cases are more complicated because prosecutors have a greater incentive to try to get the lab work that shows that the substance was in fact marijuana and not hemp. So, how do you go about getting a felony case dismissed? Well, first in a situation where the individual who’s been here arrested has not made any admission –remember the burden is always on the state or the federal prosecutor – so by not making admissions, you’ve now forced them to prove you intently actually, or knowingly possessed the marijuana.
We look for the lack of affirmative links between the substance and you, the fact that the substance was found in your vehicle is not enough to convict you. Do they have fingerprints? Was it found in your pocket, in your lap, in the center console or was it found in a door pocket or perhaps in the backseat? The farther away from you it is, the better your case becomes. Similarly, was it found in another package? Was it found in a backpack? Was it found in a purse? Does that backpack or purse contain any identifiers that belong to you or any things that could be identifiable and related to you? For example, if marijuana is found in a backpack or a purse, we’re going to look at things that perhaps the police did not look at – what else was in the backpack? Is it a backpack that belongs to you? Is someone else’s ID in the purse that they found the marijuana in? The lack of affirmative links can be a powerful tool to avoid a conviction.
Despite prosecutors thinking that most cases that come in front of them are righteous, the reality is when these cases get to juries, juries expect more. Was the container ever tested for fingerprints? Was there anything else that linked the substance that was found to the person who’s being accused? Was there a search warrant run on this person’s phone to see if they’ve conducted drug transactions? What else is there?
It’s also important to remember that labs are not infallible. At the end of the day, these are people working jobs, trying to do the best that they can, but people make mistakes. We’ve had cases where we’ve retested suspected evidence and it turned out not to be what the police originally thought it was. We’ve even had cases where the lab unwittingly, transposed a digit and returned a lab report that didn’t even belong to that case.
Depending on the weight of the suspected substance, we may decide to retest the evidence just based on the weight. For example, if we get a test result that has just crossed over into felony territory – so four ounces and one gram – we’re going to wait a month or two months and get that evidence retested to see if it comes back below the felony threshold. Similarly, if we’re looking at a very small amount of marijuana, it might make sense to retest the evidence, to have it weighed to see if there’s actually a usable amount of marijuana.
Unlike other drugs, where a detective full amount of a controlled substance is enough to sustain a conviction, for marijuana, there must be usable quantity. Now there’s some bad case law out there that suggests that 0.03 grams of marijuana is enough to be a usable quantity, but when you’re getting down to very small amounts, it’s always worth taking a second look at what the amount actually is.
We hope you found this information about possession of marijuana useful. For more information about possession of marijuana charges, please visit our page on Tarrant County Possession of Marijuana Lawyer.
For more information about Tarrant County’s First Offender Drug Program, check out their website.
Have more questions about possession of marijuana? Call us today at (817) 203-2220 or reach out online for a complimentary strategy session. During this call we will: