Vape pens have recently gained popularity, especially among teenagers and young adults.
Although these gadgets are commonly used for inhaling nicotine or flavored e-liquids, they can also be used for inhaling cannabis or THC, the psychoactive substance found in marijuana.
In Texas, possession of THC, even if it is in a vape pen, is illegal and can lead to serious legal consequences.
If you’ve been caught with a THC vape pen in Texas, you’re probably wondering, is a vape pen a felony in Texas?
You may also be thinking, what penalties am I facing if caught with a THC vape pen under Texas law? We answer those questions below.
If you have questions or would like to speak with a San Antonio drug crime lawyer, please contact us today.
Is Possessing a Vape Pen a Felony in Texas?
In Texas, if you’re under 21 and caught vaping, you could face a fine of up to $100, as per Section 161.252 of the Texas Health and Safety Code.
Possession of a vape pen containing THC or any related substance is classified as a felony in Texas, regardless of the quantity.
Dab pens legality in Texas varies. THC vape pens, including dab pens, are generally illegal. Possession of any amount can lead to arrest, with penalties ranging from six months to life in prison.
Possessing means having knowledge that the substance is around and not taking active steps to immediately get it out of your possession.
According to Texas Health and Safety Code 481.103, tetrahydrocannabinol (THC) from sources other than the marijuana plant is classified as a Penalty 2 Group Substance, making any possession or use by minors a felony offense.
Since the oil and resin is not considered marijuana flower, if you have a THC vape pen in Texas, you will be charged with a felony regardless of how much THC is in the vape.
This is because it is seen as a concentrated substance, which falls into the Penalty Group 2 substances.
It is legal to possess vape pens in Texas if you are a registered medical marijuana patient and have purchased the vape from a certified dispensary.
However, if on bond or the supervision of the court, you must get permission prior to using medical marijuana.
What Are the Penalties for Possession of a THC Vape Pen?
The penalties for possession of a THC vape pen in Texas depend on the amount of THC oil or concentrate it contains. In general:
- Possessing 1 gram or less could result in up to 2 years in jail and a fine of up to $10,000.
- Possessing 1 to 3.99 grams could result in third-degree felony charges, punishable by up to 10 years in prison and a fine of up to $10,000.
- Possessing 4 to 399.99 grams could result in second-degree felony charges, resulting in up to 20 years in prison and a fine of up to $10,000.
- Possessing 400 grams or more could result in lifetime felony charges, which could lead to up to 99 years or life imprisonment and a fine of up to $50,000.
The penalties for possessing THC vape pens may also include probation or deferred adjudication, random drug testing, community service, and drug education programs.
The severity of consequences depends on factors such as your age, criminal history, and the specifics of your case.
Punishment for Minors Possessing Vape Pens in Texas
If a minor under the age of 17 is caught with a vape pen, they will likely face prosecution as a juvenile. In these cases, the focus is primarily on rehabilitation rather than punishment.
For students, it’s important to note that effective September 1, 2023, House Bill 114 requires students who sell, give, have, or use a vape within 300 feet of school property to be sent to a disciplinary alternative education program (DAEP).
Strategies for Getting Your THC Vape Pen Case Dismissed
If you’re facing charges for having a THC vape pen, there are several ways to defend your case and possibly get it dismissed.
The first step is to talk to an experienced San Antonio criminal defense lawyer, like the ones at Austin Hagee Law Firm.
They can look at your case and determine your best defenses. Here are a few possible strategies:
- Unlawful Search and Seizure. If the police didn’t have a good reason to stop or search you or your property, they may have violated your rights under The Fourth Amendment to the United States Constitution. If this happened, the evidence against you might not be allowed in court.
- Lack of Knowledge. If you didn’t know the vape pen had THC in it, you might be able to defend yourself by saying you didn’t know it was illegal. This could be especially true if you borrowed the vape pen from someone else AND it did not have markings on it indicating that it contained THC.
- The Vape Pen isn’t yours. If the vape pen doesn’t belong to you, you can’t be charged with possessing it. This would mean that you didn’t have knowing possession of the vape pen or you didn’t have any affirmative links to the vape pen.
- Challenging Lab Results. Sometimes, lab tests can be wrong. If you can show that the lab tests that showed THC in your vape pen were inaccurate, your case may be dismissed. Also, the concentration of the oil must be shown to be more than 0.3 percent THC under the 2018 Farm Bill. If it is not more than 0.3 percent THC, then the oil will be legally classified as hemp and therefore not illegal.
- Not Enough Evidence. If the prosecution doesn’t have enough proof that your vape pen had illegal THC, your case could be dismissed. This could be because the lab tests were unclear, or the police didn’t properly handle the evidence.
Texas Diversion Programs for Minors and First Time Offenders
If you’re a minor or are a first time offender who’s been caught with a THC vape pen in Texas, you may be eligible for a diversion program.
These programs are an alternative to prosecution and can help you avoid a criminal record. To qualify for a diversion program, you’ll usually need to complete community service, take drug education classes, and go to counseling.
These types of programs are available to individuals that have no issues on bond, can consistently pass drug tests, and have no criminal history.
Why you should contact an Experienced Defense Attorney
If you have been charged with possessing a THC vape pen in Texas, it is crucial to seek guidance from an experienced defense attorney.
These legal experts can make a significant difference in the outcome of your case. They will help you understand your legal rights and develop the most effective defense strategy for your case.
They can negotiate with the prosecutor to reduce the charges or even get the case dismissed. Vape pen cases are felony cases, and mishandling these charges can be the difference between becoming a convicted felon or even serving serious time.
Navigating the legal system in Texas can be overwhelming, especially when dealing with the state’s complex laws. An experienced attorney can simplify the legal process and protect your rights.
Austin Hagee Law Firm, Your Texas Vape Pen Offense Attorneys
Our law firm is led by trial attorney, Austin Hagee, a nationally recognized defense attorney, and staffed by experienced criminal defense attorneys focusing on defending Texans accused of drug offenses.
With more than a decade of trial experience and previous work as prosecutors, we have an in-depth understanding of the prosecutor’s tactics and how to defend even the most complex cases.
Our track record speaks for itself, as we have successfully had many vape pen cases dismissed, reduced, or placed on diversion programs.
We are committed to fighting for our client’s constitutional rights and helping protect their futures. Our firm will work tirelessly to help you or your loved one avoid a criminal record.
Contact the Austin Hagee Law Firm for a free consultation. We can help you understand your legal options and develop a strategy to defend your case.
Austin M. Hagee is a trusted and proven San Antonio trial lawyer who tirelessly defends his clients’ constitutional rights. As a former prosecutor turned nationally recognized criminal defense attorney, Austin has the knowledge and expertise to get the best possible outcome for his clients.
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