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ASK A NORML LAWYER - INSTALLMENT 1

Q:  What’s likely to happen to me if I get ticketed or arrested for a small amount of marijuana here in Austin?(I don’t have any criminal record.)

A:  The punishment range for a Class B misdemeanor in Texas is up to 180 days in a county jail and up to a $2000 fine.But that’s just the upper end possibility, not the reality, and you asked what was likely, not what was theoretically possible.  After fifteen years of practice, I can safely assure you that jail time is not a reasonably likely outcome given your scenario.

In fact, “just” getting probation, whether regular or deferred is not a particularly good outcome either.  If you are convicted, however, a sentence of jail or a probated sentence, are the only two possibilities.Consequently, the lawyer’s goal should be to get your case dismissed.

I do that by advising my clients that they are going to go on my probation first, so that they reduce the chances they have to go on the judge’s formal probation later.  First, they do some community service.Next, they complete an 8 or even 15 hour Drug Offender Education Program.This is the same class that they would have to take if placed on probation by a judge; I ask them to do it up front.Therefore, there’s less reason for a prosecutor to insist that they be probated – after all, they’ve already done the class, right?

It also helps if my client can put together a boy-scout packet (or girl-scout packet): letters of recommendation, letters from a current or former boss about what a hard worker they are/were, etc.It doesn’t have to say anything at all about “I know So-and-so was arrested but”; folks are always looking to have resume letters.As your lawyer, I’m just trying to show the prosecutor that you are a productive member of society…in case they look at the 5 minutes of your life in the police report and decide that you are just sitting in Mom’s basement, playing Xbox 360 and smoking weed all day.

There aren’t any guarantees, of course, in the courtroom or anywhere else in life, but if you have little to no criminal history and are charged with a possession of marijuana in these parts, the steps outlined above will significantly increase your chances of getting your case eventually dismissed.

Q:  My friend was stopped and searched and the officer found a pipe with residue.Instead of possession of marijuana itself, he was written a ticket for paraphernalia.  He was told it was a Class C, and that he could just pay a small fine and be done with it.  Is that true?

A:  It’s true that he can handle it by just paying a fine, but it’s not true that he should handle it that way.First things first: whether it was the officer or a clerk of the Municipal Court/Justice of the Peace, he should not have been given advice about it by a non-lawyer.Secondly, “just” paying the fine will result in a permanent non-expungeable disposition that can follow him around forever.

But, he doesn’t necessarily need a lawyer either.Most Class C courts and prosecutors will offer a deferred disposition where you agree to take a class and pay the fine and stay out of trouble for a period of time and the case will be dismissed.This is the same legal mechanism as getting your speeding ticket dismissed with money and defensive driving.

Obviously, paying a fine and doing a class and/or community service means jumping through more hoops than “just” paying the fine, but in the long term, being eligible to erase it from your record, as opposed to being convicted, can definitely be worth it.

Jamie Spencer practices criminal defense in Travis and the surrounding counties.He is a member of Texas NORML and a lifetime member of the national NORML Legal Committee.  If you have questions please email them to This email address is being protected from spambots. You need JavaScript enabled to view it. or This email address is being protected from spambots. You need JavaScript enabled to view it. and he will answer them in a future column. ~