Texas Marijuana Charges for Beginners

July 2, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 562-7549

For Starters

Just because the police see it one way doesn’t make it so.  Marijuana charges in Texas are thrown out by judges and juries on a daily basis.  Aggressive legal representation is a must.

The Nuts and Bolts

Texas Health and Safety Code Section 481.121 governs possession of Marihuana.  That provision states, “a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana.”

Tex.Health&Saftey.C. Section 481.002(26) defines marihuana as “the plant cannibis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture or preparation of that plant or its seeds.”

Possession is defined by Tex.Code.Crim.P. 107(39) as “actual care, custody, control, or management.”

Search and Seizure and the Exclusionary Rule

Drug cases will very frequently have search and seizure issues due to how the drugs were attained by law enforcement.  The 4th Amendment to the U.S. Constitution prohibits unreasonable search and seizure.   Voluminous legal cases and treatises are devoted to the topic.  The exclusionary rules (Tex.Code.Crim.P. 38.22 and 38.23) prohibit evidence in trial that is attained illegally.

Search and seizure issues alone often decide marihuana and other drug cases because of the exclusionary rule.

Punishment

Possession of Marijuana is a Class B misdemeanor which is punishable by a fine not to exceed $2,000 and up 180 days in jail for a usable quantity less than 2 ounces.

Between 2 and 4 ounces is a Class A misdemeanor punishable by up to a $4,000 fine and a jail sentence not to exceed 1 year.

Between 4 and 5 ounces is a State Jail Felony punishable between 180 days and 2 years of State Jail and a fine not to exceed $10,000.

Between 5 and 50 pounds of marijuana is a 3rd Degree Felony punishable between 2 and 10 years in prison and a fine not to exceed $10,000.

Between 50 and 2,000 pounds of marijuana is a 2nd Degree Felony punishable between 2 and 20 years of prison and a $10,000 fine.

Over 2,000 pounds is a 1st Degree felony punishable by life in prison or between 5 and 99 years in prison.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice for any specific case you should consult an attorney.

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Silly Traffic Law = Excuse for Profiling

June 9, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Texas probably has thousands and thousands of laws on the books.

There is no such thing as a silly or unimportant traffic law and here’s why:  police profile people and those laws — silly as they may sound — legitimize otherwise bogus traffic stops.  Those stops turn into DWI’s, drug possession charges… and if the citizen isn’t doing anything wrong… the stop turns into general harassment.

To be clear, not all profiling is racial.  Sometimes officers will act on “hunches” about how someone looks, what they drive, or how they act.  Usually, though, there is simply nothing illegal about looking different, driving a particular car, or having a nervous disposition.  The law is clear that these reasons alone aren’t enough for police to detain drivers or passengers on the roads.

In order to stop a car, a police officer needs reasonable suspicion that he has witnessed a traffic offense in his presence.  Any offense will do.  But here’s the catch — no matter how badly the officer want’s to pull someone over, they can’t do so unless they witness an offense or otherwise have probable cause to pull you over (such as a 911 call).  So officers will grasp at any law they can to pull people over that they’ve profiled to investigate for something like marijuana, cocaine, or methamphetamine for example.

The classic law is Texas Transportation Code 502.409(7)(b) which says you can’t have anything on your license plate which covers half or more of the name of the State on the plate… such as a frame your dealer put on the car.  While I’m sure there are plenty of legitimate reasons the legislature passed that provision — I can tell you that I’ve seen police pull cars over on multiple occasions due to this law on DWI arrests and drug arrests.  And oh, yeah… the cars seem to be older and beaten up, (and even the opposite — overly flashy) and maybe have a driver that looks poor or is a minority.  I hate to think how many times people have been pulled over and harassed about drugs or intoxication that weren’t doing anything illegal at all.

Ultimately there is no such thing as a silly traffic law.  The police believe that and you should too!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For specific legal advice about your own case or situation, you should directly consult an attorney.

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Posted by Jeremy Rosenthal, Esq.