By Criminal Defense Lawyer Jeremy Rosenthal
Let’s start with the easy stuff:
CBD Products : (Cannabidiol) are now legal in Texas as long as it contains no more than 0.3% THC (dry weight). The Governor signed a bill into law effective September 1, 2019 legalizing CBD.
Medical Marijuana: Legal if you have been diagnosed with parkinson’s, multiple sclerosis (MS), ALS, terminal cancer, and several seizure disorders AND you have a prescription for it. Also, it cannot be smoked but must be consumed in an oil or inhaler form.
Marijuana: Still illegal — but here’s all the hubbub:
For Legal Novices: In court the state must prove what is called the “Corpus Delicti” of every crime (Corpus Delicti is latin for ‘body of the crime’). That means they have to prove a crime was actually committed. In a murder case – it means they need to prove someone actually died — in a drug case it means someone actually possessed something illegal. Remember the Dallas fake drug scandal? It was a big stink because it’s just not a crime to possess sheet rock or gypsum even if you think it’s cocaine, anthrax or weapons grade plutonium.
The new CBD law makes it extremely difficult for law enforcement to know or prove whether the marijuana they arrest someone for has a concentration of 0.3% THC or not.
But Remember: (1) possession of marijuana is still a crime. Just because enforcement is difficult and/or problematic for the State doesn’t make it legal; and more importantly (2) This problem is temporary for two reasons — First, the State may hone-in on an efficient testing system; and second — it’s a good bet the legislature will try to fix this loophole in 2021 which may be in time to meet the statute of limitations for an arrest made in 2019.
For the Legally Advanced: This has created a nightmare in determining probable cause and reasonable suspicion to search a vehicle, seize evidence, and make an arrest.
For a police officer to search a vehicle they must have probable cause they will find evidence of an offense committed in their presence. The odor of burned marijuana has very commonly been a staple of instant probable cause. But here’s the question now: since the odor of burned marijuana isn’t necessarily indicative of a criminal offense (because someone could smoke cannabis without the active THC ingredient — or an ingredient of less than 0.3%) then does that vitiate the probable cause as well?
Assuming the odor of burned marijuana no longer supports probable cause (and that is a big assumption) then a search based on the odor of burned marijuana would be illegal and subject to the exclusionary rule. The exclusionary rule prevents evidence from an illegal search from being used against you in court — aka “fruit of the poisonous tree.” In other words, you win.
*Jeremy Rosenthal is Certified in Criminal Law by the Texas Board of Legal Specialization. Nothing contained in this article should be considered legal advice. For legal advice about any situation you should contact an attorney directly.