Austin, Texas, where we’re ‘Going Green’ in more ways than you think…a 4/20 look at Marihuana Possession in the Texas Capitol City

A pot case in an amount under two ounces is a Class B misdemeanor in Texas, and a conviction carries a maximum punishment of 180 days in jail and a $2000 fine.

A POM charge in an amount more than two ounces but less than four ounces is a Class A misdemeanor. The range of punishment for a Class A misdemeanor is a maximum one year in the county jail facility and a fine of $4000 or both.

At many 4/20 events, there will be open use of marihuana. This doesn’t mean it is legal. If a police officer sees you smoking weed, you will be detained. Detained, but not necessarily arrested. Austin has initiated “field release” citations for marihuana use. Local law gives police the discretion to temporarily detain you and issue a notice to appear for POM that requires you to appear in a court at a later date and be booked and released from jail at that time facilitated by the personal bond process. This way, people receiving the field release citations will do what’s known as a “walk-thru” at the jail and not spend the night or hire a bail bondsman for release. You will still need an attorney to represent you in court if charged with POM. Please note that police still have the discretion to arrest you for POM in lieu of issuing a field release citation.

In order for the State to prove “possession”, they must demonstrate that the accused:
(1) exercised control, management, or care over the substance, and
(2) the accused knew the matter possessed was contraband.

Your POM lawyer’s job is to mount a defense to one of these two prongs in a possession case. If convicted, not only are you subjected to the punishment ranges discussed above, but there could be other unforeseen consequences. For example, if you are a student attending a university, federal law prohibits the issuance of Federal Stafford Loans to those convicted of drug charges. In the Texas Transportation Code, any conviction for POM or POCS also results in a driver’s license suspension for 180 days (one year suspension if under the age of 21).

When charged with a misdemeanor drug case, there are ways we can keep a conviction from occurring. First, we can go to trial and attack the elements of the offense and prevent the State from meeting their burden of proof beyond a reasonable doubt. Also, we can negotiate your case with the State to a plea agreement that does not involve a conviction. Typically, these agreements may involve drug classes and community service. In certain cases where the accused has none or limited criminal history, a Deferred Prosecution Agreement or charge reduction to a fine only class C misdemeanor may be available. Deferred adjudication may also be an option in a situation where the accused agrees to do community supervision for an agreed amount of time and the maximum length is two years for a misdemeanor. At the end of the probation period, the drug case is then dismissed and no guilty finding is ever made. Different counties treat drug cases differently. In Travis County and the Austin area, drug cases are met with less strict punishments for first time offenders.

On a “lighter” note, the Texas Department of State Health Services announced today, 4/20/11, (seriously? are we drug testing state officials?) that marihuana like substances are now illegal to possess, deliver, and manufacture substances such as “K2” and “Spice”. This ban takes effect on Friday, April 22, 2011, apparently so as to not ruin your 4/20 plans! Possession of these substances will fall into the same penalty range as their inspiring herb, class B or class A misdemeanors depending on the weight.

If you have any questions regarding this or if you would like a free consultation on your POM case, do not hesitate to contact me.

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