Herreth Law
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Overcoming Marijuana Possession Charges

Attitudes are changing about marijuana, but North Texas peace officers are more aggressive than ever when it comes to these charges. Nationwide, officers mad a marijuana-related arrest once every forty-eight seconds. Over 90 percent of these arrests involved simple possession.

Texas has one of the strictest marijuana laws in the county. Possession of even a trace amount can mean up to six months in jail. So, there is a lot at stake.

Particularly because of a recent law change, marijuana possession charges are not easy to prove in court. A Fort Worth criminal defense attorney can leverage a number of defenses into a reduction of charges, a complete dismissal, or another similar favorable outcome.

Hemp and Marijuana

In 2019, the Texas legislature legalized hemp. That's why the lotions, oils, and other non-food CBD products on store shelves are now legal in Texas. CBD Oil added to food or beverages is more problematic. The Food and Drug Administration has said it is illegal to add CBD to food products. But that's the subject of a different blog.

The hemp legalization measure defines "hemp" as marijuana with less than .03 percent THC. So, if you hold smokable marijuana in one hand and hemp in the other hand, it's impossible to tell the difference. Only a THC content test can do that, and there are no such tests currently available in Texas. Once they do become available, they are quite expensive. It might cost the state more to test the sample then it would collect in fine revenue.

On a related note, there is a difference between marijuana residue and useable marijuana. Frequently, officers arrest people carrying joints, and the joint may not have any usable marijuana left in it. The defendant may have smoked it already. Using marijuana is not a crime. Only possessing marijuana is against the law.

Definition of "Possession"

Even if the substance at issue was illegal, and that's a big "if," prosecutors must still prove, beyond a reasonable doubt, that the defendant possessed the marijuana.

In this context, possession is not completely synonymous with proximity. In addition to physical location, the state must also establish:

  • Knowledge: A person could literally be sitting on a stash and not legally possess it. If the defendant did not know the bag contained marijuana, the defendant did not possess the marijuana.

  • Control: This point often comes up when a joint is passed in a circle. Officers often arrest everyone on the circle. But according to the definition of possession, the person holding the joint is the only one who possessed it.

Failure to Mirandize the defendant is another possible procedural defense. Many times, officers do not give defendants their Miranda rights before they ask questions. In these situations, any evidence the state seized, including any statements made, might be inadmissible in court.

There's a big difference between being caught with marijuana and convicted of possession. For a free consultation with an experienced criminal defense attorney in Fort Worth, contact Herreth Law. Home and jail visits are available.

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