In Galveston County, they're filing THC cases as felony offenses. If you have a vape pen with THC, a gummy laced with THC, or a brownie, it's possession of a controlled substance in Penalty Group 2. If the weight is one gram or more and less than four grams, that's a third-degree felony. If you have the plant, marijuana, you may be charged with just a misdemeanor. But these controlled substance cases are felonies, and you've got to watch out for that.
A felony charge isn't a conviction, though. The State has to prove its case, and every step of how the police got that cart is something we look at. Here's what the State has to prove in a THC case out of La Marque.
1. The traffic stop was lawful
Most of these cases start in a car, so they almost always start with a traffic stop: speeding, failure to signal, a wide right turn, something like that.
To pull you over, the police need what's called reasonable suspicion. That means specific, articulable facts they can communicate about why they thought criminal activity was afoot or about to be afoot.
The wide right turn causes a lot of issues for people. When you turn right from the rightmost lane, you have to finish the turn in the closest right-hand lane. You can't creep over to the left lane, even if you need to make a left soon. 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 often what they use. If the stop wasn't valid, everything that came after it is in question.
2. They had probable cause to search
After the stop, the officer walks up, asks for your ID and has you roll down the window. For years, if there was an odor of marijuana, that was treated as probable cause to search.
That's been challenged. Since the legislature split hemp from marijuana, the same plant is classified either as marijuana or as industrial hemp depending on its THC content. So the defense argument is: how can an officer tell the difference between the odor of marijuana and the odor of hemp without a test for THC content?
In Isaac v. State, the court said the odor of marijuana, along with its appearance, can at least be part of the totality of the circumstances. That court didn't find that odor by itself would be enough, which is how it used to be described.
Once there's probable cause to search a car, the automobile exception lets the police search the vehicle and any container inside that could reasonably hold the substance, even locked containers. That's why the probable cause question is so important.
3. You possessed it
One of the most common defenses is that you weren't in possession. The starting point for possession is care, custody and control. But once you break down the case law on how possession gets tied to a specific person, there are a lot of issues, especially when a vape pen is found in a car with more than one person in it.
4. It's actually THC, and how much
The State has to prove the substance is what it says it is. One common defense is that the flower or wax that was found isn't THC, it's hemp. Lab testing results are part of the evidence the State has to produce.
And then there's the weight. They're going to weigh the whole gummy or the whole brownie. I've even seen them weigh the whole cartridge, even though most of that is glass or metal. That weight is what moves a case into the third-degree felony range, so how it was weighed matters.
5. The evidence has to be turned over
Article 39.14 of the Code of Criminal Procedure, the Michael Morton Act, governs discovery. The State has to give us the evidence: body cameras, dash cameras, lab results, offense reports. They also have a duty to preserve evidence and to disclose exculpatory evidence, evidence that's good for the defendant.
We look at that body camera footage to see how the search was done, and at the dash camera to see whether the traffic violation happened the way the officer said. Discovery comes in waves. Body and dash camera footage and lab results can take four to six months, and we've had cases take a year. Galveston is a little faster than Harris County in some cases and slower in others. Before we consider any offer, we want all of it.
How cases end
There are two ways a case gets dropped. Informally, we work the issue out with the prosecutors. Formally, we set a motion to suppress, cross-examine the witnesses and argue it in front of the judge.
And if you have no criminal history, we're going to be trying to get you into a program to get the case dismissed. In Galveston County, that's often the pretrial intervention program, PTIP. A lot of times, if all we're talking about is THC, we can get a good result even when there's no legal basis to suppress the evidence or the stop.
This post is for educational purposes only and is not legal advice.