Not technically, but maybe it is, at least for practical purposes.
In June 2018, Governor Greg Abbott signed House Bill 1325, which passed both legislative houses with overwhelming bipartisan support. This bill legalized industrial hemp, which includes CBD oil. On its face, the bill did not affect marijuana possession. But, it may have had that effect.
The bill defines hemp as any substance with a THC concentration of less than 0.3 percent. Using current technology, it is almost impossible to establish THC concentration with any scientific certainty. As a result, the Department of Public Safety instructed troopers to “cite and release for any misdemeanor amount of marijuana” until the Legislature clarifies the law or the state acquires the necessary testing equipment.
Law enforcement agencies in Ohio and Florida face similar challenges, as lawmakers in those states recently approved similar legislation.
Marijuana Possession Defenses
Prosecutors must establish, beyond a reasonable doubt, that the substance in question was, in fact, marijuana. If the only test in evidence is the field test, there may be a reasonable doubt. Officers routinely testify that a substance “field tested” positive for marijuana, cocaine, or whatever. But the field test is often not much more than a visual inspection. As a result, officers have recently mistook bird poop for cocaine and Tide laundry detergent for heroin.
This defense is not new to most Weatherford criminal defense attorneys. The “useable quantity” defense has been around for quite some time. Assume Officer Don catches Brad smoking a joint. Brad is charged with possessing marijuana. But unless the joint still contained a useable quantity of marijuana, the charges will not hold up in court. Brad could be charged with possessing drug paraphernalia, but that is a lesser offense.
Finally, in all drug possession cases, prosecutors must establish all three elements of possession beyond a reasonable doubt. These three elements are:
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Proximity,
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Knowledge, and
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Control.
Let’s change the facts in the above example. Assume Brad is a backseat passenger in a vehicle that Officer Don pulls over. He finds a dime bag under the front seat. Once again, possession charges against Brad may not hold up in court. It’s difficult to establish all three elements given those facts. That’s especially true if Brad did not know the other people in the car every well (lack of knowledge) or someone was sitting on top of the dime bag (lack of control).
Drug possession cases account for over 80 percent of all the drug cases in Parker County courts.
Marijuana possession cases were already difficult to prove in court, and a new law increased this difficulty. For a free consultation with an experienced criminal defense attorney in Weatherford, contact Herreth Law. Home and jail visits are available.
