A lot of people come to Galveston from different states or different parts of the country, for the beach or for conferences, and end up getting arrested for possession of marijuana. Sometimes it's on the Seawall area, sometimes elsewhere, usually after being pulled over for a traffic stop with marijuana in the vehicle.
In a January 2025 video, I noted that you could still get arrested for possession of marijuana in Texas, and that in Galveston these cases were still being enforced.
The question we get a lot is: can I get a possession of marijuana arrest off my record? It can be possible, and there are a few things we do to try to make that happen. Here's how those cases are looked at.
What the charge is
The lower-level possession of marijuana case is a Class B misdemeanor in Texas. The potential punishment on one of these cases is up to 180 days in jail, or six months, and up to a $2,000 fine.
There used to be driver's license suspensions that went along with these cases, but for a first offense you're not likely to encounter any kind of driver's license suspension.
What we are trying to do most of the time is get a case like this dismissed and off our client's record.
It almost always starts with a traffic stop
Most of the time, if you're arrested for possession of marijuana, it's because it was with you in your car. So these cases almost always start with a traffic stop of some kind: speeding, failure to signal, a wide right turn, something like that.
An officer can't stop a vehicle for no reason, but they can stop it for any lawful reason. Police need what's called reasonable suspicion: a specific, articulable fact they could communicate as to why they thought some kind of criminal activity or traffic offense was occurring or about to occur.
The wide right turn causes a lot of issues for people. When you turn right from the rightmost lane, there's a rule that you have to pick the lane farthest to the right, and that's true on almost every right turn. You can't make that right-hand turn and creep over into the middle or left lane, even if you need to make a left coming up quickly. There's no such thing as a wide left turn, but there is a wide right turn offense. When police really want to pull somebody over and don't see much in the way of traffic violations, that's one they can use.
The odor of marijuana and the search
After the stop, the officer approaches, asks for your ID, and has you roll down the window. If there's an odor of marijuana, that has typically been treated as probable cause to search.
That's been challenged. In 2019, the Texas Legislature passed a law that made a distinction between hemp and marijuana based on THC content. The same plant is either marijuana or it's classified as hemp. So the argument from the defense since then has been: how can an officer tell the difference between the odor of marijuana and the odor of hemp without a test for THC content?
Courts have addressed this. In Isaac versus State, the court looked at Cortez versus State out of Dallas, where a strong odor of marijuana from a small enclosed area like a car was held to give an officer probable cause to search the car and its occupants. The Isaac court concluded that the odor of marijuana, as well as its appearance, can at least be part of the totality of the circumstances. That court didn't actually find the odor by itself would be enough, which has been described as enough in the past.
And if police do have probable cause to search a vehicle, they can search anywhere in the vehicle that could reasonably hold marijuana, even locked containers.
Looking at the video
The first thing your attorney wants to do is look at the video from the day of the traffic stop, the officer's dash camera and body camera, and see if there's a problem with the reasonable suspicion for the stop or the reason for the search.
Under the fruit of the poisonous tree doctrine, an illegal stop or an illegal search is a violation of your rights under the Texas Constitution and the United States Constitution, and that illegal police activity poisons the rest of the evidence in the case. So even if they found something, and even if you admitted it was marijuana and that it was yours, you could still get a case like this dismissed if there's a problem with the reasonable suspicion or the probable cause.
Dismissal by agreement
Even if there's no clear legal issue for the case to be dismissed, we may still be able to get a case like this dismissed by agreement with the prosecution.
That's why we always want mitigating evidence, at least in the form of a recommendation from somebody who knows you and can speak to you being a person of good character. We request those from our clients so that when we come to the table with the prosecution on day one, it's not just the State coming with their evidence. We have evidence of your good character as well.
The bottom line
Every case is a little different. But in a Galveston marijuana case, the stop, the search, the video, and the character evidence you bring to the table can all shape whether the case gets dismissed.
This post is for educational purposes only and is not legal advice.