Recently, the Bexar County District Attorney’s Office announced that they would not prosecute possession of marijuana cases involving less than an ounce of marijuana. Does this mean that you can walk down the street in downtown San Antonio, smoking marijuana without getting arrested? If you have a possession of marijuana case from before last week, will it be dismissed? If they’re not arresting people on those cases, what are the consequences?
Will you be arrested if you have marijuana?
Even though the DA’s office stated that they are not going to charge people, it’s still against the law to possess a usable amount of marijuana. There are more than 30 law enforcement agencies in Bexar County. It is up to the officer and the agency to decide whether or not to arrest someone for possession of marijuana, knowing that the person is not going to be charged. San Antonio Police Department and the Bexar County Sheriff’s Office are the biggest two and neither of them has released a statement regarding their policies on this. I think that eventually, most agencies will not spend their time arresting people for a crime that is not going to be charged, but we’ll have to wait to see.
What if you have a pending possession of marijuana case?
The announcement by the district attorney did not address pending cases, but I’ve been hearing from other defense attorneys that most pending possession of marijuana cases are being dismissed if they are less than an ounce. This is great news.
If I’m probably not going to be arrested and if I won’t be charged, what are the consequences?
Even if you don’t get arrested or charged, there are other consequences. Mainly, you could be searched. Under the 4th Amendment to the Constitution, you have the right not to be searched without a warrant signed by the judge. The Supreme Court has found some exceptions to this rule. One exception allows an officer to search you and your vehicle if they have probable cause to believe you are in possession of an illegal substance. Even if you’re not going to be charged for it, marijuana is illegal in Texas. If an officer smells marijuana on you or in your car, if an officer sees marijuana, or if you admit to having marijuana, the officer can search you and your vehicle. If it’s just a joint that he sees or that you admit to, he knows that’s not going to end up with you getting charged, but officers like to search people and their vehicles if they can. They will be looking for more marijuana (since more than an ounce will be charged), they will be looking for paraphernalia (a class C misdemeanor), they will be looking for other drugs, and they will be looking for anything else that may give them probable cause to arrest you.
It’s great news that the DA’s office has chosen to use their resources on violent crimes instead of spending their limited resources prosecuting small drug cases. Despite the new rules, you should still never admit to having anything illegal (use your right to remain silent), never consent to a search, and if an officer starts questioning you, demand an attorney.
Sean Henricksen Law Firm
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