Moisture and Hydration Disputes in Marijuana Weight Cases.

Under the Texas Health and Safety Code §481.121, the penalties for possession of marijuana depend on the weight of the cannabis seized. The statutory boundaries for these penalties are as follows:

• Possession of less than or equal to two ounces of marijuana is a Class B misdemeanor.
• Possession of more than two ounces but less than or equal to four ounces is a Class A misdemeanor.
• Possession of more than four ounces but no more than five pounds is a state-jail felony.
• Possession of more than five pounds leads to higher-level felony charges.

Weight evidence takes on special significance when the amount of cannabis recovered by law enforcement is very close to one of these statutory boundaries. Prosecutors and defense attorneys must pay close attention to the measurement of the cannabis in all pre-trial and trial proceedings.

However, evidence involving seized cannabis can be complicated by “the drying-out effect.” If seized cannabis is allowed to dry out prior to laboratory analysis, its moisture content will decrease, and consequently, it will weigh less. When this occurs, the weight measured by the laboratory will be less than the weight of the marijuana as found at the time of seizure. This discrepancy can lead to accusations of “evaporative loss,” which can potentially change the severity of the case if the loss affects whether the amount of marijuana seized crosses a statutory threshold.

If there is substantial evidence of moisture loss, the prosecution and the defense should challenge the validity of the lab weight. If enough of the cannabis weighed above the felony threshold in order for the prosecution to move forward with a felony charge, and if moisture loss can pull it back down below that threshold, there will be a dispute about the validity of the weight.

If the amount of marijuana seized falls within the state-jail felony range (above 4 ounces but under 5 pounds), but the loss due to moisture pulls the weight down to 3.9 ounces, then there is a significant evidentiary dispute about the validity of the felony charge. In this scenario, the defendant is likely to seek to have the case reduced to a Class A misdemeanor. The validity of the charges rests on which party can prove which weight applies, the weight of the cannabis as seized, or the weight of the cannabis measured at the lab.

How Should Seized Texas Cannabis Be Weighed Before Drying Changes the Charge?

When defending a Texas marijuana case, a high-stakes evidentiary battle often focuses on the weight of the cannabis seized. This becomes particularly acute in “whole plant” cases, where the cannabis plant’s water content is substantial. As noted in Sloane’s account, whole cannabis plants may undergo drying prior to laboratory submission. If this happens before the initial weight is documented, the water loss can significantly reduce the plant’s weight, potentially leading to an inaccurate assessment of the amount of cannabis seized and affecting the charges filed.

Our legal team requests independent laboratory analysis when this issue arises. Independent analysis is crucial to verify the composition and weight of the cannabis seized. The goal is to obtain a reliable, third-party assessment that can either confirm or contradict the government’s findings.

Along with challenging moisture loss, our defense attorneys examine the chain of custody for the seized cannabis. Chain-of-custody breaks can present substantial opportunities to challenge the admissibility of the evidence. If the cannabis was not stored or transported according to legal protocols, its integrity, and thus its measured weight, may be fundamentally compromised.

If the cannabis seized was allowed to dry before its original weight was properly documented, then demonstrating what the weight was prior to this drying event requires independent forensic reconstruction. The defense should insist on a process that can reliably determine the amount of moisture lost, if such reconstruction is possible. This allows for an argument about the correct amount of marijuana that was in the defendant’s possession at the time of seizure.

There is a fundamental principle of preservation in these cases: the weight of the cannabis must be preserved and documented before any penalties for possession of a quantity of marijuana can rely on a weight measurement. If the weight is not preserved and documented, this is a problem for the prosecution, not the defense. The state cannot rely on measurements taken after drying or in violation of chain-of-custody procedures to determine criminal penalties.

Finally, when analyzing cannabis-weight assertions, it is essential to identify the controlling statute, any applicable exceptions, and any relevant current amendments. In Texas, cannabis-related laws have evolved, and an up-to-date understanding of the statutory landscape is critical for building a strong defense. This includes a thorough examination of the penalties linked to different weight thresholds and ensuring that the current law is applied correctly to the facts at hand.

Todd Spodek represented the juror at the centre of the challenge to the Ghislaine Maxwell verdict.

Which Texas Weight Rule Applies to Wet Flower, Trim, Hemp, or Extract?

The legal classification and penalties associated with seized cannabis depend on several factors, including its physical form, THC content, and how it is distributed. Here are the specific Texas rules that apply to various forms of cannabis:

Stems and Seeds

In Texas, stems and seeds are not excluded from the total weight of the cannabis seized; instead, they are considered to be a constituent part of it. This means that the overall weight will include these elements, which can be particularly important when the total quantity is close to a statutory threshold.

Delivery Penalties under Texas Health and Safety Code §481.120

Under Texas Health and Safety Code §481.120, the penalties for delivering marijuana escalate based on the weight involved and the remuneration received. The primary levels of liability are as follows:

• The offense of delivering or providing more than one-fourth ounce but no more than five pounds of marijuana is a state-jail felony.
• The offense of delivering or providing more than five pounds but no more than 50 pounds of marijuana is a second-degree felony.
• The offense of delivering more than 50 pounds of marijuana is a first-degree felony.

THC Extracts

THC extracts, such as the resin or hash oil derived from the cannabis plant, are not subject to the marijuana possession laws. Instead, these extracts are classified as controlled substances in Penalty Group 2 under the Texas Controlled Substances Act. Possession of a Penalty Group 2 controlled substance below 1 gram is a state-jail felony.

Hemp

Hemp is defined as cannabis containing not more than 0.3 percent tetrahydrocannabinol (THC) by dry weight. When evaluating whether seized cannabis qualifies as hemp or a different category of controlled substance, moisture content must be considered because the legal standard is based on dry weight.

What Can Counsel Attack When Evaporation Crosses a Texas Threshold?

When evidence of a marijuana crime is subject to evaporation-driven disputes (and when prosecutors refuse to heed the advice of defense counsel regarding appropriate remedies), federal and state defense counsel have options.

Our marijuana defense lawyers often first challenge the validity of the initial search or seizure. If cannabis evidence was obtained via an unlawful stop, search, or seizure, it can and should be excluded. Under Texas Code of Criminal Procedure article 38.23(a), no evidence obtained by an officer or other person in violation of Texas or federal law may be admitted against the accused in a criminal case.

Possession of cannabis does not necessarily require an individual to physically hold the cannabis or be within reach of the cannabis in question; this is known as “constructive possession.” To establish constructive possession, the government must demonstrate an individual’s knowledge, care, custody, control, or management of the cannabis evidence. In many cases, these requirements can be challenging to prove, especially if the person in question was not present at the time of the search and seizure.

Further, the mere presence of an individual in the shared space where cannabis is located (such as a shared vehicle or residence) is not enough to establish constructive possession. In these cases, the government must establish affirmative links connecting each individual defendant to the specific cannabis in question.

In federal cases, marijuana penalties are tied to the plant count (or the count of kilograms of marijuana), and mandatory minimum sentences apply for certain violations. Cannabis grown in “hydroponics” or “vertical grow” environments often takes on a different shape than plants grown in the soil, and this fact does not protect it from penalties associated with the plant count. Further, the government can also pursue prosecutors under “marijuana-equivalent” penalties if the cannabis is processed into forms like resin, extract, or concentrate. These derivatives (along with synthetic cannabinoids) can significantly increase a defendant’s potential exposure to penalties.

Penalty summaries must not only state that there are different tiers of criminal penalties and whether the offense will be a misdemeanor or felony, they must also include procedural qualifications and full statutory citations. The distinction between the basic offenses and other potential offenses that may be more severe depends on the factual circumstances of each case. For example, the difference between a state-jail felony and a second-degree felony in a drug delivery case is based on the amount of marijuana and whether the transaction was compensated with remuneration.

Where to Go From Here

If any of this describes your situation, the next step is a conversation rather than more reading. Spodek Law Group runs a fully online client portal and represents clients coast to coast, with offices in New York, Brooklyn, Queens and Los Angeles. The number is 888 348 8028.