The Most Common Charge: Possession of Marijuana Defense in Austin, Texas

A small bag of marijuana. A traffic stop. A search. Suddenly, a minor amount of cannabis becomes a criminal charge that can affect your driver’s license, your financial aid, your job prospects, and your future. In Austin, where public sentiment around marijuana has shifted dramatically, the law remains strict. Possession of marijuana—even in small amounts—is still a crime in Texas. A conviction can stay on your record for years, affecting everything from college admissions to professional licensing.

At Barton & Associates, Attorneys at Law, we defend clients throughout Austin and Central Texas against possession of marijuana charges. From the neighborhoods of Central Austin to the communities of Round Rock, Cedar Park, Lakeway, Kyle, and Dripping Springs, our attorneys bring decades of experience to criminal defense. We understand that marijuana cases often arise from routine traffic stops—and that a skilled defense can challenge unlawful stops, illegal searches, and unreliable evidence. We know how to keep marijuana charges off your record and protect your future.

Whether you are facing a Class B misdemeanor for a small amount or a felony for a larger quantity, we provide the strategic guidance and aggressive representation you need to protect your rights.

Understanding Possession of Marijuana in Texas

Possession of marijuana is governed by the Texas Health and Safety Code. The penalties depend entirely on the amount found in your possession.

Penalties by Amount:

• 2 ounces or less: Class B misdemeanor. Punishable by up to 180 days in jail and a fine of up to $2,000. Driver’s license suspension of up to 180 days.

• 2 to 4 ounces: Class A misdemeanor. Punishable by up to one year in jail and a fine of up to $4,000. Driver’s license suspension of up to one year.

• 4 ounces to 5 pounds: State jail felony. Punishable by 180 days to 2 years in state jail and a fine of up to $10,000.

• 5 to 50 pounds: Third-degree felony. Punishable by 2 to 10 years in prison.

• 50 to 2,000 pounds: Second-degree felony. Punishable by 2 to 20 years in prison.

• More than 2,000 pounds: First-degree felony. Punishable by 5 to 99 years or life in prison.

Driver’s License Suspension:

A conviction for possession of marijuana—even a Class B misdemeanor—results in an automatic driver’s license suspension. The suspension period ranges from 180 days to two years, depending on the amount and whether you have prior offenses.

For families in Austin, a possession charge can have consequences that extend far beyond the courtroom.

What Is the Penalty for Possession of Marijuana in Texas?

The penalty for possession of marijuana depends entirely on the amount.

Small Amounts (2 ounces or less):

• Class B misdemeanor

• Up to 180 days in jail

• Fine of up to $2,000

• Driver’s license suspension (up to 180 days)

Medium Amounts (2 to 4 ounces):

• Class A misdemeanor

• Up to one year in jail

• Fine of up to $4,000

• Driver’s license suspension (up to one year)

Larger Amounts (4 ounces or more):

• Felony charges

• Years in prison

• Permanent felony record

Collateral Consequences:

• Driver’s License Suspension: Automatic for any conviction

• Financial Aid: A drug conviction can make you ineligible for federal student aid

• Employment: Many employers conduct background checks

• Housing: Landlords may deny housing based on drug convictions

• Immigration: Non-citizens may face deportation

For families in Austin, even a small amount of marijuana can have serious consequences.

How to Defend a Possession of Marijuana Charge

Defending against a possession charge requires a strategic approach. The State must prove you knowingly possessed the marijuana and that it was in your control.

Defense 1: Unlawful Search and Seizure

Most marijuana cases begin with a traffic stop or a search. The Fourth Amendment protects against unreasonable searches and seizures. Your attorney can challenge:

• No Probable Cause: The officer did not have a valid reason to stop your vehicle

• No Warrant: The officer searched without a warrant and no exception applies

• Illegal Detention: The officer held you longer than necessary to address the traffic violation

• No Consent: You did not consent to the search, or your consent was coerced

If the search was illegal, the marijuana cannot be used against you. Without the evidence, the case may be dismissed.

Defense 2: Lack of Knowledge

The State must prove you knew the marijuana was there. If the marijuana belonged to someone else, or if you did not know it was in your car or home, you have a defense.

Defense 3: Lack of Possession

Possession requires control. If the marijuana was in a shared space—a car with multiple passengers, a home with roommates—the State may not be able to prove it was yours.

Defense 4: The Substance Was Not Marijuana

The State must prove the substance is actually marijuana. Lab errors, chain of custody issues, or misidentification can be challenged. The field test used by officers is not always accurate.

Defense 5: Medical Necessity

While Texas does not recognize medical marijuana in the same way as other states, the Compassionate Use Program allows for limited use of low-THC cannabis for certain conditions. In rare cases, a medical necessity defense may be available.

Defense 6: Deferred Adjudication

For first-time offenders, deferred adjudication is often available. You plead guilty or no contest, the court defers a finding of guilt, and you are placed on probation. If you complete probation successfully, the case is dismissed and you may be eligible for nondisclosure.

For families in Austin, a strong defense can keep marijuana charges off your record.

The Traffic Stop: Where Most Marijuana Cases Begin

A routine traffic stop is the most common way marijuana cases begin. Understanding your rights during a traffic stop can protect you.

Your Rights:

• You have the right to remain silent

• You have the right to refuse consent to a search

• The officer may not extend the stop beyond the time needed to address the traffic violation

What to Do:

• Be polite and respectful

• Provide your driver’s license and insurance if requested

• Do not consent to a search

• If asked about marijuana, you have the right to remain silent

• If the officer asks to search, say clearly: “I do not consent to a search”

Challenging the Stop:

If the officer did not have probable cause for the stop, or if the stop was extended without reasonable suspicion, the evidence may be suppressed.

For families in Austin, knowing your rights during a traffic stop can prevent a routine stop from becoming a criminal case.

The “Smell of Marijuana” Doctrine

For years, the smell of marijuana alone was considered probable cause to search a vehicle. Recent changes in Texas law have limited this doctrine.

What Changed:

Under the Texas Code of Criminal Procedure, the smell of marijuana alone is no longer sufficient probable cause to search a vehicle. There must be additional evidence of criminal activity.

What This Means for You:

If an officer claims they stopped you for a traffic violation and then searched your car based solely on the smell of marijuana, the search may be illegal. The evidence may be suppressed.

Challenging the Search:

Your attorney can challenge whether the officer had probable cause to search. If the officer’s only basis was the smell of marijuana, the search may be invalid.

For families in Austin, the change in the law provides a powerful defense.

Driver’s License Suspension for Marijuana Possession

A conviction for possession of marijuana results in an automatic driver’s license suspension. This is true even for a Class B misdemeanor.

Suspension Periods:

• First offense (2 ounces or less): Up to 180 days

• Second or subsequent offense: Up to one year

• Class A misdemeanor (2-4 ounces): Up to one year

Avoiding Suspension:

• Deferred Adjudication: If you receive deferred adjudication, the suspension may be avoided

• Dismissal: If the case is dismissed, no suspension

• Occupational License: If your license is suspended, you may be eligible for an occupational driver’s license

For families in Austin, avoiding license suspension is often as important as avoiding jail time.

Deferred Adjudication for First-Time Offenders

For first-time marijuana possession charges, deferred adjudication is often available. This is one of the best outcomes you can achieve.

How Deferred Adjudication Works:

• You plead guilty or no contest

• The court defers a finding of guilt

• You are placed on probation (typically 6-12 months)

• Conditions may include drug education classes, community service, and fines

• If you complete probation successfully, the case is dismissed

• You may be eligible for nondisclosure (sealing of the record)

Benefits:

• No conviction on your record

• No driver’s license suspension (in most cases)

• Eligibility for nondisclosure after completion

• Ability to answer “no” to most questions about criminal history

Eligibility:

Deferred adjudication is generally available for first-time offenders with no prior criminal history. It is not available for those charged with possession of more than 4 ounces.

For families in Austin, deferred adjudication is often the goal in a marijuana possession case.

Expungement and Nondisclosure for Marijuana Charges

If your case is dismissed or you complete deferred adjudication, you may be eligible to have your record cleared.

Expungement:

• Available if the case was dismissed, you were acquitted, or you were arrested but never charged

• Destroys the record entirely

• You can legally deny the arrest ever occurred

Nondisclosure:

• Available after successful completion of deferred adjudication

• Seals the record from public view

• Employers, landlords, and the general public cannot see the record

Waiting Periods:

• Expungement: No waiting period after dismissal

• Nondisclosure: Typically no waiting period for misdemeanor deferred adjudication

For families in Austin, clearing your record is the final step in putting a marijuana charge behind you.

Frequently Asked Questions About Possession of Marijuana in Austin, Texas

When clients come to our office—whether from Austin’s central neighborhoods, the suburbs to the north and south, or the Hill Country communities—they often have questions about marijuana possession. Here are the answers to the most common inquiries we receive.

Is marijuana legal in Austin?

No. While Austin has adopted policies that deprioritize enforcement of low-level marijuana offenses, possession of marijuana remains illegal under Texas law. You can still be arrested and charged.

What is the penalty for possession of less than 2 ounces of marijuana?

Possession of 2 ounces or less is a Class B misdemeanor, punishable by up to 180 days in jail and a fine of up to $2,000. Your driver’s license may also be suspended.

Can I get deferred adjudication for marijuana possession?

Yes. First-time offenders are often eligible for deferred adjudication. Successful completion results in dismissal of the case.

Will I lose my driver’s license for marijuana possession?

Yes, if you are convicted. A conviction for possession of marijuana results in an automatic driver’s license suspension. Deferred adjudication may avoid the suspension.

Can I get my marijuana charge expunged?

If your case is dismissed or you are acquitted, you may be eligible for expungement. If you complete deferred adjudication, you may be eligible for nondisclosure.

What is the smell of marijuana doctrine?

Under recent changes in Texas law, the smell of marijuana alone is no longer sufficient probable cause to search a vehicle. There must be additional evidence of criminal activity.

Do I need an attorney for a marijuana possession charge?

Yes. Even a small amount of marijuana can result in jail time, a criminal record, and driver’s license suspension. An experienced attorney can challenge the search, negotiate for deferred adjudication, and protect your record.

Why Barton & Associates for Marijuana Possession Defense in Austin

Marijuana possession defense requires attorneys who understand the Fourth Amendment, the recent changes in Texas search and seizure law, and the strategies for keeping charges off your record. The attorneys at Barton & Associates bring decades of experience to this area of criminal defense, helping clients avoid jail time, keep their driver’s licenses, and protect their futures.

We are deeply rooted in the Austin legal community. We have handled marijuana cases in Travis County courts for decades and understand the local prosecutors, the law enforcement practices, and the strategies that work. This local knowledge allows us to advise clients accurately and advocate effectively.

We are also committed to a client-centered approach. We take the time to understand your case, your goals, and your concerns. We explain your options in clear, straightforward language, and we provide honest advice about the best path forward.

Take the First Step Toward Protecting Your Record

If you are facing a possession of marijuana charge, your record, your driver’s license, and your future are on the line. Do not wait. The sooner you have an experienced attorney on your side, the better your chances of keeping this charge off your record. At Barton & Associates, we are here to fight for you.

Call our Austin office today at 512-THE-FIRM (843-3476) to speak with an experienced criminal defense attorney about your case. You can also complete the online Free Consultation form on our website to schedule a confidential meeting. Please note, on-site consultations are by appointment only. We look forward to helping you protect your rights and your future.

Main Category: Criminal Defense Austin
Practice Area Category: Drug Crimes
Barton & Associates, Attorneys at Law
316 W 12th St Suite 400, Austin, TX 78701
Office: 512-THE-FIRM (843-3476)