You’re driving home after a long day, and an officer pulls you over for a minor traffic violation. As the officer checks your license, they spot a dab pen in your car – a dab pen maybe a friend left in your car or that you didn’t even realize was illegal in Texas.
Suddenly, you’re facing serious charges and wondering how to escape this situation. Sound familiar? If you’ve been caught with a vape or dab pen in Texas, you’re probably wondering what happens if you get caught with a dab pen in Texas, what comes next, or if there is any way to get your dab pen case dismissed.
Ready to take charge of your future? Here are five essential steps to help you stand firm and protect what matters most. Learn how to get a dab pen dismissed in Texas.
Step 1: Understand the Legal Consequences of THC Dab Pens in Texas
Is a Vape Pen Illegal in Texas?
Yes, in most cases, it is. Texas law classifies Delta-9-tetrahydrocannabinol (THC), the active ingredient in cannabis, as a Penalty Group 2 controlled substance under the Texas Controlled Substances Act.
While hemp-derived CBD products are legal under the federal 2018 Farm Bill, any product containing THC, including dab and vape pens, is illegal.
Possessing any amount of marijuana concentrate, like THC oil or resin found in dab and vape pens, is classified as a state jail felony. Unlike marijuana flower, concentrates—including oils and resins—are treated as a felony offense no matter the THC content. Since this is the oil inside of virtually all THC and CBD pens, possessing either of these, without proper supporting documentation, can land you with a felony charge against you.
This means that the penalties for possessing a weed dab pen are much harsher than for possessing marijuana flower, which is often a misdemeanor for small quantities.
The seriousness of the punishment depends on factors such as how much concentrate is involved and whether you have a prior criminal record.
However, Texas allows for medical use of marijuana for specific conditions through the state’s Compassionate Use Program. Exceptions apply, so consult with a skilled marijuana crimes lawyer. Compassionate Use in Texas covers edibles and tinctures, but it does not include smokable forms of THC oil or flower.
Dab Pen vs. Vape Pen: What’s the Difference
Dab pens and vape pens are both popular devices for enjoying cannabis concentrates, but they have some key differences.
Dab Pens
Dab pens are designed for vaporizing cannabis concentrates like wax or shatter. They require higher temperatures to vaporize the thicker substances and offer a more potent experience.
Vape Pens
Vape pens are designed for vaporizing cannabis oil or flower. They operate at lower temperatures and provide a smoother, less intense experience. The vapor from these pens does not create the same concentration of cannabis in the resulting vapor.
Step 2: Challenge the Evidence
Was the Search Legal?
One of the most effective ways to get a dab pen case dismissed is to challenge the evidence against you. The Fourth Amendment of the U.S. Constitution and the Texas Constitution protect you from unlawful searches and seizures. If law enforcement violated your rights by conducting an illegal search or traffic stop, any evidence obtained during that search may be inadmissible in court.
For instance, if the officer didn’t have probable cause to search your vehicle or person, your attorney could file a motion to suppress the evidence, which may lead to the dismissal of your case.
A skilled criminal defense attorney can review the circumstances of your arrest and assess whether law enforcement violated your constitutional rights. The attorneys at our firm have had great success in challenging illegal searches and seizures in counties throughout the State of Texas. The cases we have had success in range from minor state jail felonies to multi-count indictments of first degree felonies.
Step 3: Scrutinize the Lab Testing
Was the Substance Properly Tested?
To secure a conviction, the prosecution must prove that the substance in your weed pen is indeed THC and not a legal substance, such as CBD. This requires them to differentiate the concentration of the substance you had from legal hemp with a delta-9 tetrahydrocannabinol concentration of 0.3 percent on a dry-weight basis.
Texas law enforcement agencies often rely on forensic labs to test substances for THC content. While the Texas Department of Public Safety follows strict lab testing protocols, these tests are not foolproof.
Additionally, not all agencies use the necessary resources to properly identify the percent of delta-9 tetrahydrocannabinol prior to bringing their case, which means many cases may be well positioned for a legal challenge.
A defense lawyer can question the accuracy of the testing methods used. Lab errors, improper evidence handling, or contamination can produce false or inaccurate results. If the lab cannot definitively prove that the substance in your dab pen contained THC above the legal threshold, this weakness in the prosecution’s case could be grounds for dismissal or suppression of the necessary evidence to prove your case.
Step 4: Consider Pretrial Diversion Programs
Is There an Alternative to Conviction?
In some cases, especially for first-time offenders, Texas offers pretrial diversion programs. These programs allow you to avoid a conviction by completing specific requirements, such as:
- Community service,
- Drug education classes, or
- Counseling.
Completing the program successfully can lead to dropped charges. This option is often available to those with no prior criminal history and who are willing to meet the conditions set by the court.
A seasoned attorney can help you determine whether you qualify for a pretrial diversion program and negotiate with the prosecution on your behalf.
Step 5: Leverage Legal Defenses to Your Advantage
Was It Truly Your Dab Pen?
Another potential strategy involves questioning whether the cannabis dab pen truly belonged to you. If the police discovered the pen in a shared area, such as a car or apartment, your attorney could argue that you were unaware of its presence or that it belonged to another person.
Additionally, Texas law requires that the prosecution prove you knowingly possessed an illegal substance. If they cannot establish that you knew THC was in the device, this could weaken their case and the necessary affirmative link to establish knowing possession.
Your attorney can explore all possible defenses, including mistaken identity, lack of knowledge, or ownership issues, to increase your chances of dismissal or success in a Texas courtroom.
The Importance of Legal Representation: Why You Need a Criminal Defense Lawyer
Trying to manage a marijuana dab pen possession case on your own to get dismissed is not just risky; it’s also complex. When your future is on the line you need an attorney with experience and the time to properly fight your case.
Texas takes drug-related offenses seriously, and the consequences of a conviction can affect every aspect of your life, from employment to housing to personal relationships. This is why having a skilled criminal defense attorney by your side is essential.
A talented attorney, like those at Austin Hagee Law Firm, can:
- Investigate the facts of your case,
- Challenge the legality of the search and seizure,
- Scrutinize lab results for errors or insufficient results,
- Negotiate with prosecutors for reduced charges or alternative resolutions, and
- Protect your rights at every step of the legal process.
Given the high stakes, you shouldn’t leave your future uncertain. Our law firm has substantial experience defending clients against marijuana-related charges in San Antonio and throughout Texas, and we have a proven track record of achieving case dismissals and reduced charges for hundreds of clients.
Protect Your Future with Austin Hagee Law Firm
Getting caught with a dab pen in Texas can feel like a life-altering event, but it doesn’t have to be. By understanding your options, challenging the evidence, and collaborating with one of our skilled attorneys, you might be able to get your dab pen case dismissed, and get your life back on track.
Don’t wait until it’s too late. Time is a critical factor in building a solid case. Every day you delay could hurt your case.
The San Antonio criminal defense attorneys at Austin Hagee Law Firm are ready to fight for your rights, using our deep knowledge of Texas drug laws and tested courtroom strategies. We have successfully helped clients like you throughout South Texas get charges dropped or dismissed, and we can do the same for you.
Don’t wait until your options run out. Contact us today to schedule a consultation, and let us guide you toward the best possible outcome.
Resources:
- National Library of Medicine, Tetrahydrocannabinol, link
- Lab Accreditation Program. Texas Department of Public Safety. Link
- Is marijuana legal in Texas? What you need to know about the state’s pot laws. The Texas Tribune (2024), link
- Texas Statutes Controlled Substances Act Section 481.116; penalties, link
- Texas Statutes Chapter 487, Texas Compassionate-Use Act. link
- Cannabis and the Law. Texas State Law Library, link
- Dab Pen vs Vape Pen: Let’s Compare. Elevate Holistics, link
- Dab Pen vs. Vape Pen: What’s the Difference? Leafwell, link
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