Marijuana, or marihuana, is a name for the cannabis plant and more specifically a drug commonly used for a variety of purposes. Its legal status, however, varies state to state while federally it is illegal for all recreational purposes. Until recently, marijuana in all its forms had also been illegal for medical purposes, but the Federal Drug Administration (FDA) in July 2018 approved its first cannabis-based drug.
In Texas, marijuana remains absolutely illegal for any and all purposes. If you are charged with a marijuana crime, whether possession or delivery of marijuana, you can expect the State to throw the book at you. But do not give up. Even if you think you will be found guilty, you should still plead not guilty and then find yourself a good defense lawyer.
An experienced Austin defense attorney can hold the prosecutor, judge, and jury accountable to the principle that you are innocent until proven guilty beyond a reasonable doubt. Marijuana defense attorney Jason English explains what some possible defenses could be. Of course, each case is different and requires its own specific strategy. If you have questions, contact Jason English to discuss your case.
Basic Texas Elements of a Marijuana Offense
To build a marijuana defense, it is important to know what the State of Texas must prove. Common marijuana crimes in Texas include possession and delivery.
Possession of Marijuana & Elements Necessary to Prove It
According to the Health and Safety Code § 481.121,
a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana.
As such, there are three elements that must be proven in order to be found guilty of possession of marijuana in Austin.
- You must have known you were in possession of marijuana. Alternatively, you must have intended to be in possession of it.
- You must have been found with a usable quantity of marijuana.
- The substance found must have been marijuana.
Delivery of Marijuana Offense & Elements Necessary to Prove It
According to the Health and Safety Code § 481.121,
a person commits an offense if the person knowingly or intentionally delivers marihuana.
According to the same statute, "deliver" means
to transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship. The term includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia.
Under this offense, there are also three elements that must be proven in order to be found guilty.
- You must have known you were delivering marijuana. Alternatively, you must have intended to do the same.
- You must have actually or constructively delivered marijuana.
- The substance delivered must have been marijuana.
For both charges, the elements must be satisfied. Your attorney will put forth a defense that weakens or disproves the elements were present.
Common Defenses in Texas Marijuana Cases
There are a number of defenses that can be used -- if applicable -- in your case. A few of these defenses are described below, many of which correspond with the above elements of the alleged crime.
No Knowledge of the Marijuana
If you did not know the substance you had was marijuana then there is no mental culpability. On the other hand, you may know the substance is marijuana, but you may not have known it was on your person or on your property. Without this knowledge, you also lack mental culpability.
Lack of Possession of Marijuana
If the substance was not found under your care, custody, or control, then you did not possess it. For instance, if the marijuana was found in a car that you were riding in, but it was not your car and the marijuana was not located near you to indicate intent or knowledge of its existence, then you did not possess the marijuana.
On the other hand, if the substance was found on your person but the lab proved it was not, in fact, marijuana, then you are not guilty of the crime. It could be another herb or substance that shares the same physical characteristics.
Absence of Usable Quantity
In Texas, the definition of what is usable has not been defined. Typically, usable quantity refers to either what is common or just enough to smoke or consume. That question is left to the jury. And in Texas, that means it is a gamble but for an experienced criminal defense attorney who knows how to speak to juries and influence them.
Unlawful Search & Seizure
The 4th Amendment protects you against wrongful search and seizures. The police must have probable cause and must lawfully obtain a warrant to search and seize either your person or your property -- though there are some exceptions to this rule in Texas. Absent probable cause, proper attainment of a warrant, proper administration of the warrant, or warrant requirement exception, evidence flowing from a search and seizure can be suppressed.
Lab Mistakes or Misplacement of Evidence
In some cases, the lab may have made mistakes in the handling and analysis of the evidence. In other cases, the marijuana evidence may have been misplaced. In either circumstance, it could mean the dismissal of charges.
Retain a Resourceful Marijuana Defense Attorney in Austin Today
If you have been arrested for a marijuana drug crime in Austin TX, it is important to retain an experienced, resourceful defense attorney. Jason English knows that a conviction of a marijuana crime, even for possession of a very small amount, can lead to serious consequences, including jail, fines, and even problems associated with a criminal record -- like passing a background check for a job or rental space. Contact Jason English today at 512-454-7548 or online for an initial consultation.