Marijuana

Short answer: Yes. In Texas you can be charged with DWI without drinking any alcohol at all. The Penal Code defines "intoxicated" to include losing the normal use of your mental or physical faculties because of a controlled substance, a drug, a dangerous drug, a combination of substances, or "any other substance," and having a valid prescription "is not a defense." Unlike alcohol, Texas has no fixed legal limit for THC or other drugs, so in a drug DWI case the State generally has to prove actual impairment, not just that a drug showed up in your blood.

Many people are surprised to be arrested for DWI after a stop where the breath test showed little or no alcohol. In Tarrant, Dallas, Denton, Collin, Johnson, and Parker counties, officers often follow up with a blood warrant, a drug recognition evaluation, and a lab analysis for marijuana, prescription medications, or other drugs. Those cases look different from a typical alcohol DWI, and they are often defended differently.

At Howard Lotspeich Alexander & Williams, PLLC (HLAW), our Fort Worth DWI attorneys defend drug-related DWI charges across the Dallas-Fort Worth area. This guide explains what Texas law says about DWI by drugs, THC, and prescription medications, how the State tries to prove these cases, and the questions that often decide them.

Key Takeaways

• Drug DWI is the same offense as alcohol DWI. Texas Penal Code §49.01(2)(A) defines intoxication to include impairment from "a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance" (Tex. Penal Code §49.01).
• A prescription is not a defense. Under §49.10, the fact that a person "is or has been entitled to use" the drug "is not a defense" (Tex. Penal Code §49.10).
• There is no per se limit for drugs. The 0.08 rule in §49.01(2)(B) applies only to alcohol concentration. For drugs, the State must prove loss of normal use of mental or physical faculties.
• THC in blood is a poor measure of impairment. NHTSA has reported that "THC level in blood (or oral fluid) does not appear to be an accurate and reliable predictor of impairment from THC" (NHTSA Report to Congress).
• Jury instructions must match the evidence. The Texas Court of Criminal Appeals held in Burnett v. State (2017) that a trial court must submit "only the portions of the statutory definition of 'intoxicated' that are supported by the evidence" (Burnett opinion).
• Refusing a test still has license consequences. Implied consent covers testing for drugs as well as alcohol, and a refusal generally leads to a 180-day license suspension for a first refusal (Tex. Transp. Code ch. 724).

Can You Get a DWI in Texas Without Drinking Alcohol?

Yes. Texas Penal Code §49.04(a) makes it an offense to be "intoxicated while operating a motor vehicle in a public place" (Tex. Penal Code §49.04). The key word is "intoxicated," and §49.01(2) gives two separate ways to prove it:

1. Loss of normal use: "not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body"; or
2. Per se alcohol: "having an alcohol concentration of 0.08 or more."

Only the first definition applies to drugs. That means a DWI can be based on marijuana or THC products, prescription painkillers, anti-anxiety medications, sleep aids, muscle relaxers, stimulants, over-the-counter medications that cause drowsiness, or a mix of alcohol and any of these. A first DWI is generally a Class B misdemeanor with a minimum of 72 hours of confinement, regardless of which substance is alleged.

Is a Prescription a Defense to DWI in Texas?

No. Texas Penal Code §49.10 says that in a DWI prosecution, "the fact that the defendant is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense" (Tex. Penal Code §49.10).

That does not mean anyone taking a prescription is guilty of DWI. The legal question is still whether the medication caused you to lose the normal use of your mental or physical faculties while you were driving. Many people take prescribed medications every day at stable doses and drive normally. A prescription can still matter as evidence. It can explain why a drug was in your system, show how long you had been taking it, and show that you were used to its effects. What it cannot do is serve as a complete legal excuse if impairment is proven.

Is There a Legal Limit for THC or Drugs in Texas?

No. Texas has no per se limit for THC or any other drug. The 0.08 threshold in §49.01(2)(B) is specifically an "alcohol concentration," which the statute defines as grams of alcohol per volume of breath, blood, or urine (Tex. Penal Code §49.01).

This matters because drug test results are often less meaningful than people assume. NHTSA's report to Congress on marijuana-impaired driving explained that, in the studies that have been conducted, "the consistent finding is that the level of THC in the blood and the degree of impairment do not appear to be closely related," and that "peak impairment does not occur when THC concentration in the blood is at or near peak levels" (NHTSA Report to Congress). NHTSA has also noted that THC metabolites "can be detected in the blood and urine for days to weeks after consumption, long after any impairing effects of the drug have concluded" (NHTSA Countermeasures That Work).

In other words, a lab report showing THC or a metabolite proves that the substance was present at some point. On its own, it may not prove that you were impaired at the time you were driving. For more on Texas marijuana law generally, see our guide to marijuana laws in Texas.

How Does the State Try to Prove a Drug DWI?

Because there is no drug equivalent of a 0.08 breath test, prosecutors usually build drug DWI cases from several pieces of evidence:

Type of evidence	What the State uses it for	Common defense questions
Driving behavior	Shows impairment on the road	Was there a traffic violation, or an innocent explanation such as weather, road design, or fatigue?
Officer observations	Slurred speech, pupil size, unsteadiness, confusion	Are these signs consistent with the specific drug alleged, or with a medical condition, nerves, or fatigue?
Field sobriety tests	Divided-attention performance	Were the tests designed and validated for alcohol, and were they given correctly?
Drug recognition evaluation	An officer's opinion on the drug category causing impairment	Was the evaluator properly certified, and did he follow the full protocol?
Blood test	Shows which substances were present	Does the level show impairment at the time of driving, or only past use? Was the blood properly collected, stored, and tested?
Statements	Admissions about what was taken and when	Were the statements voluntary, and are they consistent with the lab results?

Why expert testimony often matters

Texas courts have long treated drug intoxication differently from alcohol intoxication. Describing the Court of Criminal Appeals' decision in Smithhart v. State, 503 S.W.2d 283 (Tex. Crim. App. 1973), the Dallas Court of Appeals explained that while alcohol intoxication is common enough that "its recognition requires no expertise," intoxication by drugs requires expert testimony or evidence connecting the symptoms to a conclusion that the person was under the influence of a drug to the point of impairment (Waller v. State, Tex. App. Dallas 2009).

The Waller court also made clear that modern sufficiency review considers all of the evidence, including an officer's opinion and a refusal to test. So the absence of an expert does not automatically end a case. But the quality of the State's drug evidence is often the central battleground.

Drug recognition evaluators

Many DFW agencies use officers trained as drug recognition experts (DREs). These officers follow a standardized evaluation to form an opinion about whether a person is impaired and which drug category is involved. Texas appellate courts have admitted DRE testimony in a number of cases, including where the officer explained his training and methodology (Sanders v. State, Fort Worth Court of Appeals 2020). That does not make every DRE opinion reliable. The evaluator's training, whether each step was completed, and whether the opinion matches the toxicology results are all fair subjects for cross-examination.

What Happens When Alcohol and Drugs Are Combined?

Many DWI cases involve a small amount of alcohol plus a medication. Texas law allows the State to rely on the combined effect. In Gray v. State, 152 S.W.3d 125 (Tex. Crim. App. 2004), the Court of Criminal Appeals upheld a "synergistic effect" jury instruction where there was evidence that the defendant's prescription antidepressants made him more susceptible to the effects of alcohol. As the Texas District and County Attorneys Association summarizes it, the court "concluded that the substance that causes intoxication is not an element of the offense. Instead, it is an evidentiary matter" (TDCAA case law summary). We have written about this issue before in our posts tagged synergistic effect.

There is an important limit. In Burnett v. State (Tex. Crim. App. 2017), pills were found in the driver's jacket and an officer thought some might be hydrocodone. The Court of Criminal Appeals held that the jury charge was erroneous because it included the full drug definitions of "intoxicated" without evidence supporting them. The court explained that the trial court must submit "only the portions of the statutory definition of 'intoxicated' that are supported by the evidence. To do otherwise is error." There was no evidence showing what kind of drug hydrocodone is, whether it can cause intoxicating effects, or whether the driver's symptoms were consistent with it (Burnett opinion).

The practical lesson is that the State cannot simply point to pills in a car and ask a jury to assume they caused impairment. It needs evidence tying the substance to the person's condition.

Do You Have to Give Blood for a Drug DWI Test?

Texas's implied consent law covers drugs as well as alcohol. A person arrested for DWI "is deemed to have consented" to a breath or blood specimen "to determine the alcohol concentration or the presence in the person's body of a controlled substance, drug, dangerous drug, or other substance" (Tex. Transp. Code §724.011). A breath test only measures alcohol, so if an officer suspects drugs, he will usually ask for blood.

You can refuse, but refusal has consequences. Under §724.035, a refusal generally results in a 180-day license suspension for a first refusal. Officers in DFW also frequently obtain blood search warrants after a refusal, especially on no-refusal weekends. Our guide to refusing field sobriety tests covers the separate question of roadside tests.

If your license is suspended after a refusal, you have only 15 days from receiving notice to request an Administrative License Revocation hearing. See our guide to the ALR hearing and the 15-day deadline. At that hearing, the issues include whether there was reasonable suspicion or probable cause for the stop or arrest and whether you refused a specimen request (Tex. Transp. Code §724.042).

What Defenses Apply in a Drug or THC DWI Case?

Every case depends on its facts, but common issues in DFW drug DWI cases include:

1. The stop. Was there reasonable suspicion of a traffic violation or criminal activity before the officer pulled you over?
2. Probable cause for the arrest. Did the officer have enough evidence of impairment, not just a smell, a statement, or a medication bottle?
3. Timing. How long after driving was blood drawn, and what does that mean for any opinion about impairment at the time of driving?
4. The lab work. Chain of custody, storage, testing methods, and whether the lab reported active drug or only inactive metabolites.
5. The DRE evaluation. Whether every step of the protocol was completed and documented, and whether the officer's drug-category opinion matches the toxicology.
6. Alternative explanations. Medical conditions, injuries, fatigue, anxiety, or disabilities that can mimic signs of impairment.
7. The jury charge. Whether the evidence actually supports a drug or combination theory under Burnett.

Video from dash cameras and body cameras is often the most important evidence in these cases, because it shows how you actually spoke, walked, and responded. For a related issue, see our article on being arrested for DWI under 0.08.

Frequently Asked Questions

Can I get a DWI for driving after using legal hemp or THC products?

Possibly. The DWI statute applies to impairment from "any other substance," so the legal status of a product does not control whether you can be charged with DWI. The question is whether it caused you to lose the normal use of your mental or physical faculties while driving. Because THC levels correlate poorly with impairment, these cases often turn on the officer's observations, video, and expert testimony.

Can I be convicted of DWI for taking my prescribed medication?

You can be charged, and a prescription is not a legal defense under Penal Code §49.10. But the State still has to prove that the medication caused you to lose the normal use of your mental or physical faculties. Evidence that you took it as prescribed and were used to it can be relevant to that question.

Does a positive blood test for marijuana mean I was impaired?

Not necessarily. NHTSA has reported that blood THC levels are not a reliable predictor of impairment, and that THC metabolites can be detected for days to weeks after use. A positive result shows presence, which is different from proving impairment at the time of driving.

Is a drug DWI punished differently than an alcohol DWI?

Generally no. A first DWI is a Class B misdemeanor with a minimum of 72 hours of confinement under §49.04(b), whether the alleged intoxicant is alcohol or a drug. The 0.15 Class A enhancement in §49.04(d) is based on alcohol concentration, so it does not apply to a drug-only case. Prior convictions and other factors can raise the level of the offense.

Will a drug DWI arrest suspend my license?

If you refused a breath or blood test, your license can be suspended for 180 days for a first refusal. The test-failure suspension in Chapter 724 is tied to alcohol concentration. A conviction can also bring separate license consequences. Request an ALR hearing within 15 days of receiving notice to protect your rights.

What should I do after a drug DWI arrest in Fort Worth?

Write down everything you remember, including what you took, when, and in what dose. Gather your prescription records. Do not discuss the case on social media. Then talk to a DWI defense lawyer quickly, since the ALR deadline is short and video evidence should be requested early.

Talk to a Fort Worth DWI Defense Lawyer

A drug or THC DWI charge often involves different evidence, and different defenses, than a typical alcohol case. The sooner a lawyer reviews the stop, the video, and the lab work, the more options you may have.

Call HLAW at (817) 993-9249 or contact us online for a free consultation about your Dallas-Fort Worth DWI case.

This article is for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. Laws change, and every case depends on its specific facts.

When you think about the Christmas season, you probably think about family time, presents, good food, and celebration. We think about those things too, but as criminal defense attorneys, we also think about the reasons that some of our clients get arrested during the holiday season. For this article, we took a look at the last 8 years of holiday season arrests (for clients that we represented) and compiled an (anecdotal) list of the top 5 reasons that folks get arrested during the Christmas/New Year's season. Our goal is that this list will serve as a warning, so that your holiday season can be filled with the good stuff, rather than jail, bail, and calls to our office. Here goes:

5. Shoplifting

Many retailers slash their prices and offer steep discounts in the weeks leading up to Christmas and even bigger discounts after Christmas, but we have yet to see any retailer offer the "five finger discount" for their merchandise. Regardless, we see plenty of shoplifting cases during the Christmas season, making it our #5 reasons that people get arrested during Christmas. Depending on the regular price value of the item (not the discounted price), shoplifting theft charges can range from misdemeanors to felonies. Learn more about Theft law in Texas here.

4. Package Theft

In a similar vein to shoplifting, our #4 reason for holiday arrests is package theft. Many shoppers choose the convenience of online shopping and have their Christmas purchases delivered right to their front door. Some people see this as an easy target, following behind UPS or FedEx trucks to steal those would-be Christmas gifts from the front porch. However, with the increase in doorbell cameras, it is getting easier to catch the porch pirates in the act. Further, some law enforcement agencies have begun using dummy packages to bait thieves into getting caught. Package theft can range from a misdemeanor to a felony depending on what unknown treasure lay inside the brown box.

3. Air Travleing Trouble (Guns, Drugs, and Intoxication)

Going to visit grandma can require air travel for many families. This means that thousands more people than usual flood through DFW Airport between Thanksgiving and New Year's. It matters not from where these travelers hail. From Maryland to Oregon to France, if a person is arrested at DFW Airport, their case will be filed in Tarrant County, Texas and they will have to travel back to DFW to attend court. During the holidays, we see a surge in airport arrests when people bring items into the airport that are not allowed or when folks over indulge during a layover. Specifically, we see the following airport arrests:

• • Airport Gun Charges (as of 2022 and changes in the law, this has mostly subsided);
  • Possession of a Controlled Substance (CBD oil, THC oil, marijuana, etc.); and
  • Public Intoxication.

Even if the state from which a traveler is coming has legalized marijuana and the state to which they are traveling has legalized marijuana, if they are caught possessing marijuana in the airport, they will be arrested and charged. The combination of airport gun arrests, airport drug arrests, and airport public intox arrests make these types of cases our #3 reason for holiday arrests.

2. Assault Family Violence

In the movie Christmas Vacation, Clark Griswold showed an enormous amount of restraint when his extended family pushed him to the limit (especially Cousin Eddie), but not everyone is blessed with such a cool head. Christmas time brings added stressors into the family environment that can sometimes lead to verbal or physical altercations between family members, so much so, that these arrests rank at #2 in our book. Depending on the nature of the assault, a domestic violence arrest can be charged as a misdemeanor or a felony. Learn more about Family Violence under Texas law.

1. Driving While Intoxicated

With all of the Christmas and New Year's parties and the increase in No Refusal Weekends, it is not hard to guess that DWI arrests are #1 on our list. Driving While Intoxicated in Texas can range from a misdemeanor (if it is a first or second offense) to a felony (if there is a child in the car or if the person arrested has been convicted of DWI twice in the past). Our advice is to plan ahead and do not even take your car to a Christmas party when you plan to drink. Catch a ride from a friend or take an Uber or Lyft. That would be a lot cheaper than hiring an attorney and a lot less hassle too. Learn more about Texas DWI law here.

We Hope You Never Need Us, But We're Here if Your Do.

We wish you a very merry Christmas and a happy New Year. As always, we hope you never need us to represent you or one of your loved ones for a criminal offense. This is even more true during the Christmas season. Hopefully this list will help you avoid trouble that looms during the holiday season. If you do happen to need us, we are only a phone call away at (817) 993-9249.

Does the Smell of Marijuana Allow Officers to Search My Vehicle Without a Warrant?

In Texas, the answer is yes. The possession of marijuana is a crime in Texas, so if an officer smells marijuana emanating from your car, he has probable cause to believe a crime is being committed. With probable cause, the law permits the officer to stop and search your car— regardless of whether you consent.

The officer has the ability to do this through what is called the “automobile exception” to the 4th Amendment’s warrant requirement.¹ Generally, the 4th Amendment to the United States Constitution requires police officers to first obtain a warrant before they can search a person’s property. However, because automobiles can quickly move locations and evade law enforcement, the Supreme Court reasoned that it would be impractical to require officers to first secure a warrant before they are permitted to search a vehicle.² So by claiming to smell marijuana, law enforcement officers can also claim to have probable cause to believe a crime is being committed—allowing them to take advantage of the automobile exception and search a vehicle without anything more.

Will the Search Laws Change if Marijuana Becomes Legal?

Maybe. There have been small changes in the law with the current trends in marijuana legalization. A couple of state courts adopted the rule that, after legalization or decriminalization, the smell of marijuana is no longer enough on its own to justify a warrantless search of a vehicle. For example, in Vermont, after the decriminalization of adult possession of less than one ounce of marijuana, the Vermont Supreme Court held that the odor of marijuana alone is insufficient to establish probable cause to search a vehicle.³ The Massachusetts Supreme Court ruled that the state’s decriminalization policy means that the possession of marijuana is now a civil infraction, making the smell of it an insufficient basis for officers to believe a crime is being committed.

However, most states where marijuana is legalized or decriminalized still follow the rule that the smell of it establishes probable cause in support of a vehicle search.⁴ This is because these states still criminalize the possession of larger amounts of marijuana—meaning that the smell of it still indicates that a crime could be underway. This is the logic that the Washington, Maryland, Colorado, and Arizona courts follow.⁵

But what about Texas?

As stated above, the possession of marijuana in Texas is a crime, and officers are still justified in searching vehicles if they smell marijuana coming from them. However, Texas legalized the cultivation of industrial hemp in 2019, which smells like just like marijuana. The issue of whether probable cause can still be supported by the odor of marijuana in light of hemp’s legalization was raised in state court in 2020, but the court left it undecided as the vehicle search in question occurred before the legalization of hemp.⁶ It remains to be seen if or when Texas will legalize marijuana, and what attitude Texas courts will take towards the question of marijuana odor and vehicle searches.

 

[1] Carroll v. United States, 267 U.S. 132 (1925).
[2] Id., at 153.
[3] Zullo v. State, 2019 Vt. LEXIS 1, * (Vt. January 4, 2019).
[4] Cece white, The Sativas and Indicas of Proof: Why the Smell of Marijuana Should Not Establish Probable Cause for a Warrantless Vehicle Search in Illinois, 53 UIC J. Marshall L. Rev. 187, 211 (2020).
[5] Id., at 211.
[6] Geberkidan v. State, 2020 WL 5406243, NO. 12-19-00296-CR (2020).

What is CBD Oil?

CBD Oil, which is short for cannabidiol oil, is a cannabinoid extract that is alleged to have the health benefits of cannabis (e.g. pain relief, easing of inflammation, anxiety management and the treatment of epilepsy) without the psychoactive effects of marijuana. CBD Oil is sold as a supplement in marijuana dispensaries, nutrition stores, and even as an additive in smoothies. While the popularity of CBD Oil is growing substantially, the product remains unregulated by the U.S. Food and Drug Administration, leading to wide discrepancies in the product's ingredients and quality. The variety of ingredients and compounding methods may have significant ramifications for consumers depending on Federal and state law and the interpretation of those laws by state law and health code enforcement agencies.

Is CBD Oil Legal Under Federal Law?

Yes, if it is produced within federal guidelines.

As of December 20, 2018, the Fed Gov has legalized hemp that has a tetrahydrocannabinol (THC) concentration of no more than 0.3% by removing it from Schedule I of the controlled substances act. States and Indian Tribes may regulate the production of Hemp by submitting a plan to the USDA. This bill also makes hemp producers eligible for the federal crop insurance program and certain USDA research grants.

With the passing of the new 2018 Farm Bill, hemp and hemp-derived products have been officially removed from the purview of the Controlled Substances Act, such that they are no longer subject to Schedule I status. Meaning that so long as CBD is extracted from hemp and completely pure (with less than 0.3% THC on a dry weight basis of THC, something the DEA doubts is possible) and grown by licensed farmers in accordance with state and federal regulations, it is legal as a hemp product.

However, in 2016 the Drug Enforcement Agency released an administrative ruling considering CBD Oil to be a Schedule One drug, comparable to heroin, peyote and LSD, operating on the theory that it is extracted from the same parts of the Cannabis sativa plant that contain THC, the active ingredient of marijuana. CBD consumers and manufacturers assert that CBD can also be extracted from the non-intoxicating parts of the Cannabis sativa plant that produce hemp, however, a recent 9th Circuit decision affirmed the DEA's authority to classify CBD Oil as within their administrative purview.²

For CBD Oil to be considered legal in the Federal system under the DEA's guidelines it must “consist[] solely of parts of the cannabis plant excluded from the CSA definition of marijuana.” In the definition of marijuana given by the Controlled Substances Act, the “mature stalks of such plant, fiber produced from such stalks, oil or . . . any other . . derivative, mixture, or preparation of such mature stalks” are excluded from the definition. Presently the DEA considers an extraction process using only the parts of the cannabis plant that are excluded from the CSA definition of marijuana to be “not practical.” This is because the extraction process used would “diminish any trace amounts of cannabinoids that end up in the finished product.”

Is CBD Oil Illegal Under the Laws of the Various Individual States?

Yes, CBD is legal, but not in all states.

At the state level, CBD Oil is considered legal in the states where marijuana is legal for recreational use (Alaska, California, Colorado, DC, Maine, Massachusetts, Nevada, Oregon, Vermont). Twenty-nine states have made marijuana legal for medical use in various quantities and CBD is also considered legal under those state laws, irrespective of the THC content of the source of the oil. In states that have not decriminalized marijuana, CBD Oil is also likely illegal.

Is CBD Oil Legal In Texas?

NO, unless you fall within the qualifications set by the Compassionate Use Act.

If you are prescribed the use of medical CBD oil and use ‘low-THC” CBD, then the use is legal. Texas has legalized marijuana for medical use only, but only in a very narrow set of circumstances. The Compassionate Use Act of 2015 authorizes the prescription of “low-THC cannabis,” defined as having no more than 0.5% THC for patients diagnosed with intractable epilepsy and entered into the state-maintained “compassionate-use registry.”³ The Act requires prescription by two physicians however, it is currently illegal under federal law for a physician to “prescribe” marijuana. Under a 2000 court ruling, it is legal for physicians to “recommend” marijuana to their patients but the language of the Compassionate Use Act calls for a prescription, setting up a conflict with Federal law.⁴ Additionally, to qualify for the medical use of CBD, the patient must have tried two FDA-approved drugs and found them to be ineffective. There are currently three dispensaries licensed by Texas to sell qualifying products to authorized consumers.

If you do not fall within the qualifications set by the Compassionate Use Act, then possession of CDB oil containing any amount of THC is against Texas law. The State definition of marijuana closely tracks the Federal definition. The Texas Health and Safety Code defines marijuana as “the plant Cannabis sativa . . . and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds.” The Code excludes “the mature stalks of the plant or fiber produced from the stalks [and] a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil.” Texas does not currently have legislation allowing for the cultivation of hemp, though industrial hemp derived from the mature stalks of the Cannabis sativa plant may be sold and consumed.

What is the Penalty for Possession of CBD Oil in Texas?

In Texas, if you possess CBD oil with any trace of THC, you could be charged with a Felony for Possession of a Controlled Substance in Penalty Group 2, which (depending on the weight in grams) can carry a range of punishment from 180 days in a state jail facility up to 20+ years in prison and a fine not to exceed $10,000. Several of our clients have been arrested for possessing CBD oil after officers performed a field test and discovered that yielded a positive result for THC.

If the CBD oil does not contain any THC, is it currently a Schedule V substance not in any penalty group. Possession of CBD with no THC can be charged as a Class B Misdemeanor with a punishment range of 0 - 180 days in jail and a fine up to $2,000.

What To Look For In CBD Oil In Texas

CBD Oil made from the mature stalks of the Cannabis sativa plant are likely in conformity with both Federal and Texas State law. Consumers seeking to purchase CBD Oil in Texas should look for a product advertised as being the product of “industrial hemp” or “mature hemp.” Products advertised as containing “THC” or “CBD Oil” should be avoided because of potential conflict with State and Federal laws.

• Texas consumers with intractable epilepsy may seek to join the Compassionate Use Registry and get a prescription for CBD Oil containing less than 0.5% THC from an authorized dispensary.
• Physicians should be mindful that “prescribing” CBD Oil to Texas residents under the Compassionate Use Act may fall into conflict with existing Federal law.
• Retailers that are not one of the three state-authorized dispensaries authorized by the Compassionate Use Act should take care to carry only products that do not advertise themselves as containing CBD Oil but instead focus on being the product of industrial hemp.

Where Can I Purchase CBD Oil with 0% THC?

While there are many CBD oil stores popping up all over Texas, we have found one near our office that sells CBD Oil with 0% THC in it. They test it to confirm the THC content so that you can be sure of what you are getting. Visit Your CBD Store at https://yourcbdstorekeller.com to learn more or purchase their CBD products online. But remember that even though many agencies are not choosing to arrest or prosecute for  zero THC CBD oil, the Tarrant County DA's office is still filing these cases if a person is arrested.

Sources:

1. H.R.2642 - 113th Congress (2013-2014): Agricultural Act of 2014.
2. Hemp Industries Association v. USDEA, No. 17-70162
3. SB339  Texas Compassionate Use Program
4. Conant v. McCaffrey  WL 1281174

Current Marijuana Laws in Texas

Despite having been legalized in other states, possessing even a small amount of marijuana is a crime in Texas. The Texas Health and Safety Code says it is illegal for a person to knowingly or intentionally possess a usable quantity of marijuana. How much marijuana a person has in their possession will affect the level of severity of the offense.

• Up to 2 0z- Class B Misdemeanor, punishable by up to 180 days in jail and up to a $2,000 fine
• 2oz to 4oz- Class A misdemeanor, punishable by up to 1 year in jail and a $4,000 fine
• 4oz to 5lbs- State Jail Felony, punishable by 180 days to 2 years in jail and up to a $10,000 fine
• 5lbs to 50lbs- 3rd Degree Felony, punishable by 2 to 10 years in jail and up to a $10,000 fine
• 50lbs to 2000lbs- 2nd Degree Felony, punishable by 2 to 20 years in jail and up to a $10,000 fine
• More than 2000lbs- 1st Degree Felony, punishable by 2 to 99 years in jail and up to a $50,000 fine

Proposed Texas Laws Relating to Marijuana

Texas failed to pass any new marijuana legislation in 2017, but proponents of legalized marijuana are hopeful for the 2019 legislative session. House Bill 2107 was proposed during the 2017 session, co-authored by 78 House members. The bill would have expanded the Compassionate Use Act to include Texans dealing with medical issues other than intractable epilepsy. While the bill narrowly missed being brought to a vote, it showed there was bipartisan support for such a bill, and legislators remain optimistic marijuana reform will happen in 2019.

Medical Marijuana in Texas

The Texas Compassionate Use Act was signed by Governor Greg Abbot in 2015. The Act allows for individuals with intractable epilepsy to have access to CBD oil, a low THC cannabis oil. The bill prohibits smoking marijuana. Critics of the law say it is unworkable, as it requires a doctor to “prescribe” marijuana rather than recommend it as they do in other states where medical marijuana is legal. Under current federal law, a doctor “prescribing” marijuana could be open to sanctions, while one recommending the use is not. Another issue is that the ratio of THC to CBD that is allowed under the law is not potent enough to help some patients. There is potential for changes to be made to the Act during this legislative session, with proponents of the Act looking to broaden the scope and make access easier for patients.

THC Oil in Texas (Wax, Dabs, Marijuana Concentrate)

Possessing THC (tetrahydrocannabinol) oil in Texas is considered a more serious crime than simply possessing marijuana. Over the last few years, vaping THC oil, which is a concentrated version of the mind-altering component of marijuana, has become popular. Under Texas law, THC oil or wax is considered a concentrate and possessing it is a felony criminal offense.

• Less than 1 Gram- State Jail Felony
• 1 Gram to 4 Grams- Third Degree Felony
• 4 to 400 Grams- Second Degree Felony
• 400 grams or more - First Degree Felony

The law considers THC oil and wax to be in a different penalty group that marijuana, due to the higher level of THC, and consequences are much harsher. So while a typical small amount of marijuana could be punishable as a misdemeanor, even a very small amount of THC oil can be punishable as a felony. This is a common misconception that we often see in our THC oil cases. The user believes that a low amount is a misdemeanor, much like a low amount of marijuana. Not so. Every THC oil case is a felony.

Edible THC in Texas

The use of THC oil in edibles can be very serious. When weighing the amount of a controlled substance, the Texas Health and Safety Code includes all adulterants and dilutants in the total weight. Popular THC laced edibles like gummy candy and brownies will be weighed in their entirety, and can result in very serious felony charges.

CBD Oil in Texas

Cannabidiol oil (CBD Oil) is made from cannabis, but is non-psychoactive. CBD oil that is made from industrial hemp is currently legal in Texas. Recently, shops selling CBD oil products have been popping up all over the metroplex, with promises the product can relieve pain and anxiety. The Texas Department of State Health Services has begun to crack down on retailers selling food products made with CBD oil, claiming they have the power to regulate any food product that contains CBD oil.

But not all CBD oil is legal. If there is any trace of THC in the CBD oil, the user could face prosecution for misdemeanor Possession of a Controlled Substance (Not in a Penalty Group).

Synthetic Marijuana in Texas

K2, or Spice, is a synthetic form of marijuana that is created by spraying natural herbs with chemicals meant to mimic the effects of marijuana. Synthetic Marijuana is illegal in Texas, and carries the same punishment as marijuana.

Selective Prosecution for Marijuana Offenses in Texas

Several counties across the state, including Dallas, Bexar, and Harris, have implemented a marijuana cite and release program whereby folks are not being arrested for low-level possession charges. Other counties have diversion programs for first-time or low level offenders. You should check with a knowledgable attorney in your local area to learn more about the diversion programs available.

In Tarrant County, depending on the circumstances of the case, a marijuana offender may qualify for the Deferred Prosecution Program (DPP) or the First Offender Drug Program (FODP). Again, you should check with an attorney to determine whether you might be eligible to participate in either program.

Conclusion

Regardless of whether you disagree with what the law should be in regard to marijuana in Texas, it is currently illegal to use or possess. If you are arrested for possession of marijuana, you may qualify for a diversion program that will ultimately allow you to get your record fully expunged. Contact one of our attorneys today if you have pending marijuana charges in Tarrant County. We will be happy to discuss your options and defend your case.