Pot Possession Charges: FAQ


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Pot Possession Charges: FAQ

Texas is like a whole other country when it comes to marijuana possession charges. In fact, it has some of the harshest penalties in the nation. While a neighboring state has fully legalized recreational pot and the country at large has lightened its stance on the drug, Texas goes its own way and has not joined them. If you are facing a possession charge for marijuana, the answers to the following frequently asked questions can help.

How can they prove that I knew I had marijuana on me?

In Texas, possession charges are based on knowingly possessing the controlled substance. Possession in this context is different than ownership is, and this means that more than one party can have possession of the same illegal drug, including marijuana, at any given time. In order to prove possession, the state must demonstrate that all the following apply (regarding your connection to the marijuana):

  • Care

  • Custody

  • Control

This amounts to you knowing that the item in question was a controlled substance and to you having some control over it. This distinction often comes into play when the marijuana in question is hidden or otherwise concealed and/or when you – as the accused – are on someone else’s property. Proving that you knew about the drug in these situations can make the prosecution’s job more difficult.

While you could potentially claim that you did not know what the substance in question was, this stance is not likely to get you very far in a court of law, but there are exceptions to everything.

What is the definition of possession in Texas?

The law prohibits you from possessing marijuana and other drugs in the State of Texas, but possession in this context has a specific meaning – and it is not the same as the meaning we use in our day-to-day lives. As mentioned, possession refers to care, custody, and control of the drug in question.

Custody of the drug means about what you think it means (the protective care of the drug), but care and control here are somewhat broader in meaning, and this matters when the marijuana is found somewhere other than physically on you (if it is found in your car or home, for example). To make the issue that much more complicated, there is also what is known as joint possession, which means that two or more people can be in possession of the same thing simultaneously.

In Your Car

If marijuana is found in your glove box when you are behind the wheel, you have care and control over your car at the time, which means that you will probably be charged with possession (even if you have passengers in the car). This is not necessarily true, however, if the drugs are under a passenger’s seat or on the seat beside a passenger.

The legal issue becomes who has control over the drug. Because the police officer needs nothing more than probable cause – which the drug’s presence satisfies – he or she may just arrest you all and let the prosecutor sort it out.

In Your Home

If drugs are found in your home, you are more likely to be deemed responsible because everything inside your home is theoretically under your control. If you are visiting someone else’s home, however, where the marijuana is found and how much of it there is will likely guide how the charge or charges are levied. Where the drugs are found is especially important. For example, if the marijuana is out in the open in your home, the police can claim it is under your control.

Proving that you knew the marijuana was there alone is not enough to obtain a conviction – the prosecution must establish that not only did you know it was there but that you also had control over it. The amount of marijuana in question is also likely to play a pivotal role. For example, if there is a small baggie of marijuana in the closet of your guest bedroom, it is a very different matter than if there are 50 pounds of marijuana stored behind the couch in your living room.


How risky is smoking in my car?

Many people who would not smoke marijuana inside – especially young people – think smoking in their car is a better option, but it is decidedly not. For example, if you are parked, and there is a plume of smoke around you, there is nothing stopping a police officer from coming over and knocking on your car door.

Once you roll your window down, the unmistakable smell of marijuana will permeate the scene, and you will have very little legal recourse in the matter. While attitudes toward smoking marijuana have changed dramatically over the years, Texas is not interested in the social mores supported by other states. If you want to smoke marijuana in Texas, it is important to recognize that it is illegal throughout the state and that your car is a terrible option.

Can the police really smell marijuana from a passing vehicle?

One of the most common scenarios to end in marijuana possession charges is being stopped for a moving violation, such as speeding or failing to dim your high beams appropriately – and the attending officer claiming to smell marijuana emanating from your vehicle. This gives him or her all the probable cause necessary to do some digging, which typically means searching your car. The obvious problem here is that there is absolutely no way to prove that the officer did not smell marijuana in the first place.

If you believe this is a violation of your Fourth Amendment right against illegal search and seizure, you are not alone, and you are not wrong. Some of the most blatant infractions are officers who claim to smell marijuana from a moving vehicle. Unfortunately, far too many courts buy-in and refuse to suppress the evidentiary fruits of these tactics. A lot of this amounts to profiling – if you look like you enjoy weed, it may invite the police to take certain liberties. Any resulting charges should be fought as aggressively as possible.

What if my friends are smoking and I am not?

If you are driving while one or more of your passengers smoke marijuana (even if you do not), you are not off the hook. Further, if you are a passenger in a car, you may think the fact you are not smoking – while your friends imbibe all around you – will protect you in some way, but this is not how the law works. While you may, ultimately, be able to prove your innocence in the matter, this does not mean that you will not be charged and that you will not have to shoulder the expense of defending yourself – not to mention the stress of not knowing what the outcome of your case will be.

Because possession charges are based on care, custody, and control of the drug in the State of Texas, and because more than one person can possess the drug at any given time, defending yourself can become very complicated very quickly. While your friends can vouch for you, this will not necessarily give you the legal bump you imagine – it can be translated as covering for you.

When do the police have reasonable suspicion?

One of the standards that applies to every criminal case is reasonable suspicion or probable cause, and charges involving possession of marijuana are no different. In order to stop and question you, the police must have probable cause for doing so. The police cannot simply pull you over because they feel like it. When the police pull you over for a traffic stop, for example, your freedoms are encroached upon, which means the police must have a reason for making the stop in the first place.

Consider the following excerpt from an opinion forwarded by the Houston Court of Appeals in relation to warrantless stops in State v. Bernard: A warrantless automobile stop is a Fourth Amendment seizure analogous to a temporary detention, and it must be justified by reasonable suspicion. The reasonableness of a temporary detention is determined from the totality of the circumstances. If an officer has a reasonable basis for suspecting a person has committed a traffic offense, then the officer legally may initiate a traffic stop. Ultimately, the opinion goes on to find that the officer’s stated reason for making the stop cannot invalidate a legal stop, nor can it validate an illegal stop because the legality of the stop is based solely on the circumstances involved (when viewed objectively).

It is arguably a lot, but if you think you were pulled over without probable cause in the first place and are facing a possession charge as a result, consulting with an experienced criminal lawyer sooner rather than later is well advised.

What penalties will I face for a possession conviction?

The penalties you face for a possession conviction involving marijuana, which is in a class by itself in the State of Texas, depend upon the amount of the drug involved. Consider the following:

  • If you are convicted of possessing 2 ounces or less of marijuana, it is a Class B misdemeanor that carries up to 180 days in county jail and up to $2,000 in fines.

  • If you are convicted of possessing from 2 ounces to less than 4 ounces of marijuana, it is a Class A misdemeanor that carries up to 1 year in county jail and up to $4,000 in fines.

  • If you are convicted of possessing from 4 ounces to less than 5 pounds of marijuana, it is a state jail felony that carries from 180 days to 2 years in a state jail and up to $10,000 in fines.

  • If you are convicted of possessing from 5 to 50 pounds of marijuana, it is a third-degree felony that carries from 2 to 10 years in state prison and up to $10,000 in fines.

  • If you are convicted of possessing from 50 to 2,000 pounds of marijuana, it is a second-degree felony that carries from 2 to 20 years in state prison and up to $10,000 in fines.

  • If you are convicted of possessing more than 2,000 pounds of marijuana, it is a first-degree felony that carries from 5 to 99 years in state prison and up to $50,000 in fines.


While marijuana charges in Texas are some of the harshest in the nation, they can be enhanced in a variety of ways that include prior felony convictions.

Prior Felony Conviction

If the current charge you face is a felony and you have a prior felony conviction of any kind on your record, it can enhance your current penalties in the following ways:

  • If the charge is a third-degree felony, the penalties you face can be bumped to the level of a second-degree felony.

  • If the charge is a second-degree felony, the penalties you face can be bumped to the level of a first-degree felony.

  • If the charge is already a first-degree felony, the penalty minimum you face can be increased from 5 to 15 years (becoming 15 to 99 years).

  • If you already have two prior felony convictions, it is referred to as habitual felon, and the penalty minimum you face can be increased to 25 years (becoming 25 to 99 years). The two prior convictions, however, must be separate and distinct events.

Do Not Wait to Consult with an Experienced Killeen Criminal Lawyer

Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a trusted criminal lawyer who has the experience, drive, and legal insight to skillfully fight for your legal rights – in zealous pursuit of your case’s most beneficial resolution. To learn more about what we can do to help you, please do not wait to contact us online or call us at 254-501-4040 today.


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