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The Three Elements of a Marijuana Possession Prosecution

In recent years, many states have all but eliminated their criminal laws which prohibit marijuana possession. On January 1, 2020, Illinois became the latest state to legalize recreational weed. However, marijuana possession is still illegal in Texas. As a matter of fact, the Lone Star State has one of the toughest marijuana possession laws in the country. A single joint could mean up to six months in jail.

There is some good news. Many Parker County jurors now see marijuana as a health and safety issues as opposed to a criminal law issue. That change alters the dynamics of these cases. Since jurors are more unfriendly, Weatherford criminal defense attorneys can often get marijuana charges dismissed, especially if there is a lack of evidence in any of the next three areas.

Produce the Substance

First, Parker County prosecutors must produce the substance in court. So, officers must have had a search warrant, or a narrow search warrant exception must have applied.

Police officers hardly ever bother to obtain warrants in drug possession cases. Therefore, this prong usually hinges on a search warrant exception. Some common ones include:

  • Consent: Property owners can consent to property searches. Apparent owners, such as people who are driving cars they do not own, can usually consent to searches as well. Consent is an affirmative, voluntary act. Opening the door for an officer is not consent. Likewise, consent given after officers bully defendants (e.g. I'll get a warrant if you don't consent) might not be legally sufficient either.

  • Plain View: This exception comes up frequently in traffic stops. If officers see drugs or other contraband in plain view, they may seize it without a warrant. This power assumes that the stop was legal.

  • Pat Down Searches: If officers have reasonable suspicion, they may pat suspects down for weapons and take any contraband they find. Reasonable suspicion of criminal activity is basically an evidence-based hunch. So, the standard of evidence is low. However, it is difficult to tell the difference between a dime bag and a ham sandwich based solely on touch.

Other police procedures, such as the failure to properly Mirandize a suspect, may also prompt a Parker County judge to exclude drugs or other evidence.

Show it was Illegal

Before the Texas Legislature legalized hemp, which is basically marijuana with little or no tetrahydrocannabinol (THC), this element of possession was easy to demonstrate. Right now, it is almost impossible to prove.

If I hold hemp in one hand and marijuana in the other hand, it's impossible to tell the difference. They look and smell alike. To establish the difference between legal hemp and illegal marijuana, the state must run a THC content test. Such tests are currently unavailable in Texas. And, when they do appear, they are expensive. So, smaller jurisdictions like Parker County might not bother with these tests.

Roughly the same thing is happening in some other states with similar hemp legalization measures, most notably Florida and Ohio.

Establish Possession

Finally, the state must prove the defendant possessed the marijuana. In addition to proximity, prosecutors must also establish:

  • Knowledge and

  • Control.

If a dime bag was under the car seat and Jim did not know it was there, Jim did not legally possess the marijuana. Likewise, if some people were passing a joint at a party, unless an officer saw Jim hold it, prosecutors probably cannot establish control beyond a reasonable doubt.

Marijuana possession cases are not easy to prove in court. For a free consultation with an experienced criminal defense attorney in Weatherford, contact Herreth Law. We routinely handle matters in Parker County and nearby jurisdictions.

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