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San Antonio, Texas 78205
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WHY HIRE THORNTON CRIMINAL DEFENSE?
Attorney Brad Thornton is a highly experienced and Board-Certified criminal defense lawyer. With his background as a former Chief Prosecutor, he has a unique understanding of the criminal justice system and is able to provide comprehensive and effective representation to his clients. He is also deeply committed to ensuring that all individuals receive fair treatment in court, regardless of their background or circumstances.
Brad Thornton is dedicated to helping his clients achieve the best possible outcome for their case, whether it is in San Antonio or elsewhere in South Texas. He recognizes the stress and anxiety that can come with being accused of a crime, and approaches his clients with compassion while keeping them informed at every step of the process. His knowledge and experience make him a strong advocate for his clients.
Possession of Marijuana
Texas Health and Safety Code § 481.121 - POSS MARIJUANA
Marijuana Defense Attorney in San Antonio, Texas
Possession of marijuana is a crime in the state of Texas. Under Texas law, marijuana is considered a controlled substance and is classified as a Schedule I drug. This means that it is illegal to possess, use, manufacture, or distribute marijuana in Texas.
The elements of the crime of possession of marijuana in Texas are as follows:
The defendant knowingly or intentionally possessed a substance
The substance was marijuana
The defendant was not authorized to possess the marijuana (e.g., the defendant did not have a prescription for medical marijuana)
What is the Difference Between Hemp, Marijuana, and CBD?
Hemp, marijuana, and CBD (cannabidiol) are all types of cannabis plants, but they are distinguished by their levels of THC, the psychoactive compound that produces a high. In Texas, the definitions of these terms are as follows:
Hemp: Hemp is defined as any part of the plant Cannabis sativa L. with a THC concentration of not more than 0.3%. Hemp was legalized in Texas in 2019 and must be cultivated and produced in accordance with state and federal regulations.
CBD: CBD is a compound found in cannabis plants, including both hemp and marijuana. CBD products, including oils, tinctures, and edibles, are legal in Texas as long as they are derived from hemp and contain not more than 0.5% THC.
Marijuana: Marijuana is defined as any part of the plant Cannabis sativa L. with a THC concentration of more than 0.5%. Marijuana is classified as a Schedule I controlled substance in Texas and is illegal to possess, use, manufacture, or distribute.
The main difference between hemp, marijuana, and CBD in Texas law is the THC concentration. Hemp has a THC concentration of not more than 0.5%, marijuana has a THC concentration of more than 0.5%, and CBD can be derived from either hemp or marijuana. Hemp and CBD are legal in Texas, while marijuana is illegal.
Issues with Distinguishing Hemp from Marijuana under Texas Law.
One of the difficulties that Texas Department of Public Safety (DPS) and law enforcement agencies have faced since the legalization of hemp in Texas is distinguishing hemp from marijuana. Both hemp and marijuana are types of cannabis plants, but hemp contains low levels of THC, the psychoactive compound that produces a high, while marijuana has higher levels of THC.
As discussed above, hemp is defined as any part of the plant Cannabis sativa L. with a THC concentration of not more than 0.5%. Marijuana, on the other hand, is defined as any part of the plant with a THC concentration of more than 0.5%. This small difference in THC concentration can be difficult to detect, especially since the appearance, smell, and taste of hemp and marijuana are often very similar.
To complicate matters further, the legalization of hemp has led to an increase in the number of hemp products on the market, including CBD oils, tinctures, and edibles. These products may contain trace amounts of THC, which can further confuse law enforcement efforts to distinguish between hemp and marijuana.
To address these difficulties, Texas DPS has implemented a new testing protocol for marijuana cases. This protocol involves the use of a high-performance liquid chromatography instrument to test the THC concentration of a substance. Despite the implementation of this testing protocol, some challenges remain. One issue is the time and cost associated with testing substances to determine their THC concentration. Another issue is the lack of access to high-performance liquid chromatography instruments in some parts of the state, which can delay the testing process.
How Does Texas Define Possession
Under Texas law, possession refers to the act of having control, custody, or ownership of an object or substance. In the context of possession of marijuana, this means that a person must have actual or constructive possession of the marijuana in order to be charged with the crime.
Actual possession of marijuana occurs when the marijuana is found on the person's person, such as in their pocket or bag. Constructive possession occurs when a person does not have the marijuana on their person, but they have control over the area where the marijuana is found, such as in their car or home.
To be charged with possession of marijuana, a person must not only possess the marijuana, but they must also know that they are in possession of the marijuana. This means that a person cannot be charged with possession of marijuana if they did not know that they had the substance in their possession
Defenses to Possession of Marijuana in Texas
Search and seizure issues can arise in possession of marijuana cases in Texas, as they do in other criminal cases. The Fourth Amendment to the U.S. Constitution protects citizens from unreasonable searches and seizures by the government. This means that law enforcement must have a valid reason for searching a person or their property and must follow certain procedures when conducting a search.
One common search and seizure issue in possession of marijuana cases is the legality of the search that led to the discovery of marijuana. If the police did not have a valid reason for conducting the search or if they did not follow proper procedures, the search may be deemed illegal. If the search is found to be illegal, the evidence obtained because of the search (e.g., the marijuana) may be excluded from the trial.
There are several ways that law enforcement may obtain a valid reason for conducting a search in a possession of marijuana case. One way is using a search warrant. A search warrant is a court order that allows law enforcement to search a specific place for specific items. To obtain a search warrant, law enforcement must present evidence to a judge showing probable cause to believe that the items sought are located at the place to be searched.
Another way that law enforcement may obtain a valid reason for conducting a search is through consent. If a person gives their consent to a search, law enforcement may search their person or property without a warrant. However, consent must be voluntary, and law enforcement must have obtained it through proper procedures.
There are other ways the police may search a car or person without a warrant, these include:
Probable cause: Probable cause refers to a reasonable belief that a person has committed a crime or is in possession of illegal items. If law enforcement has probable cause to believe that a car or person contains evidence of a crime, they may search the car or person without a warrant.
Incidents to arrest: If a person is arrested, law enforcement may search their person and the area within their immediate control (e.g., their pockets, bags, and car) without a warrant. This is known as a search incident to arrest.
Exigent circumstances: Exigent circumstances are emergency situations that require immediate action. If law enforcement believes that exigent circumstances exist, they may search a car or person without a warrant. Examples of exigent circumstances include the destruction of evidence, the need to prevent harm to others, and the need to pursue a fleeing suspect.
In addition to search and seizure issues, there are several other defenses that may be raised in a possession of marijuana case in Texas. Some of these defenses are:
Lack of knowledge: One defense is that the defendant did not know that they were in possession of marijuana. This defense may be raised if the marijuana was found in a place where the defendant did not have exclusive control, such as in a shared car or home.
Medical necessity: Another defense is that the defendant had a valid prescription for medical marijuana. In Texas, medical marijuana is not legal, but a person with a valid prescription for medical marijuana may be able to raise the defense of medical necessity.
Entrapment: Entrapment occurs when law enforcement encourages or coerces a person to commit a crime that they would not otherwise have committed. If the defendant can show that they were entrapped by law enforcement, they may be able to use this as a defense.
Mistake of fact: A mistake of fact defense may be raised if the defendant believed that the substance they were in possession of was something other than marijuana. For example, the defendant may have believed that the substance was hemp, which is legal in Texas.