Possession of Marijuana

Possession of Marijuana

I am posting/reposting this in light of SXSW and Spring Break.

Possession of marijuana can range from a Class B misdemeanor, punishable by up to 6 months in jail and a fine not to exceed $2000, to a first degree felony, punishable by 5 years to ninety nine years in the penitentiary, depending on the amount discovered in your possession by the police. It is one of the most common criminal charges in Texas. A conviction for possession of marijuana can have serious ramifications on your life. You need a good attorney for a charge of possession of marijuana.

Possession of two ounces or less is a Class B misdemeanor and the most common marijuana charge. Many times, particuarly in Travis County, “time served” –the time you were in jail on the arrest, even if it is only one or two days– is offered for a possession of marijuana Class B offense. This is not without consequences however easy it might sound. It is important to remember that a conviction for POM, even at the Class B level, can have immigration consequences, affect your ability to gain employment and housing, and can disqualify you from receiving federal financial aid to go to school. Sometimes, a lawyer can work out a deal to keep the conviction off your record if you are willing to do something in exchange – usually this involves taking a class and doing some community service at a non profit. Although not as simple as pleading guilty and receiving time served, it can be very beneficial to preserve a clean record.

One of the ways a lawyer can be beneficial for even a POM in which a small amount of marijuana is involved is by analyzing the facts of the case and the tactics the police used to find the marijuana. Each person in the United States, even an immigrant without status, has a 4th Amendment right against unreasonable search and seizure. They need reasonable suspicion of an offense to detain you, and they need probable cause to search you and your belongings, including your car. If the police violated this 4th Amendment right a lawyer can argue this to the prosecution, and the judge if necessary in a hearing, and this could lead to the case being dismissed by the prosecution or the marijuana being “suppressed” by the judge – meaning it cannot be used as evidence against you. If the evidence against you is supressed by the judge, often the prosecution will dismiss the case if there is no other evidence of your guilt of POM.

A few words of caution for marijuana users:

It is a bad idea to drive around in your car smoking marijuana. If you do carry marijuana with you regularly, do not smoke it in your car and keep it in an airtight container. The smell of marijuana is enough probable cause to search the entire vehicle for the marijuana they smell. Do not let what could be a simple traffic stop in which you could receive a citation for a moving violation turn into a night in jail because of the odor of marijuana. You may not think the smell is that strong, but to a trained officer it may very well be.

Also: there is no such thing as a “Class C” possession of marijuana. There is a Class C possession of drug paraphernalia offense – which you can receive if the police find a used pipe—but not a Class C for actual marijuana. Even for a small amount you will receive a Class B. If you have received a “ticket” for marijuana, IT IS NOT A CLASS C. It is not something you can resolve by paying. It is a “cite and release” for Class B or A POM. Cite and release is an option under the Code of Criminal Procedure that allows police officers to write a cite to someone for misdemeanor POM instead of arresting that person and taking that person to jail. Austin Police Department and Travis County Sheriff’s Office both employ cite and release. I am not aware of any other agencies in texas that does. It is within the officer’s discretion to employ cite and release, and they can only do it for misdemeanor POM. If it amounts to a felony, you are not eligible for cite and release. DO NOT IGNORE THE CITE. Ignoring it will result in a warrant issued for your arrest and a subsequent charge for Class A misdemeanor bail jumping/failure to appear. On the cite, you will be given a court date in Justice of the Peace 5. You will need to go to JP 5 on that date. You will be processed, given a personal bond, and you will be “booked” into jail at the bonding desk at the courthouse, and then released automatically, instantaneously on the personal bond you are given. You will not be taken to the actual jail– unless you have other warrants out for your arrest that the officers at the bonding desk find. If you have other warrants out, you will indeed be taken into custody. Expect this process to take 2-3 hours. Bring your ID. You will be given a court date on your personal bond that you must be present at unless you hire an attorney first.

Lastly, as a lawyer I do not judge marijuana smokers. I think it is far less dangerous drug than alcohol. It can have its downsides, particularly legal ones, but it is not my business to tell my clients to stop smoking marijuana. I personally think it is should be legal and support all efforts by legislators in Texas to decriminalize possession. We are putting far too many people in jail for small time possession of marijuana and it is harming us socially and economically.