We have been seeing an increasing number of marijuana cases, which basically follow the same fact pattern. Someone (often a student or young person) decides they want to smoke some pot so they go out to the car. The police come by and see someone in a car - maybe in a cloud of smoke. Not being idiots, they go to check - which they are allowed to do. The soon to be defendant rolls down the window, and as you would guess, he smells marijuana. He then gets you out of the car, searches it, and finds your stash. You then get an escorted trip to jail.

Marijuana is becoming more accepted and is now legal in a number of States. Polls show that the majority of people don't think the possession of small amounts of marijuana should be a crime. But the fact is it is still a crime in Texas. A crime which you can be arrested for, lose your license and possibly be sentenced to jail. So until its legal, the best advice is to simply not do it.

I realize most people - especially students and younger people aren't going to take that advice. So the next best advice is to minimize your chances of getting arrested. Obviously, that's more difficult, especially since the scent of marijuana is so noticeable. I was recently in Washington, DC, and was reminded just how distinctive it was. While taking a walk, I smelled something unusual, and I realized it was marijuana. Some people were walking toward me, openly smoking a joint. I thought that was a little brazen until I remembered that it was legal there.

The problem a lot of people have - especially students - is that you live with, or around other people. If you don't want someone to know what you're doing, you have to get away. You might think your car would be a good choice - it's probably not. Police are not stupid, and they know people go out to their cars to light up - and do other things. So if they see someone sitting in a car and not going anywhere, they are curious. They have a right to investigate, so they are going to try and find out what is happening. If they don't smell it when they walk up to the car, they are going to smell it when you either get out or roll down the window. Most people don't realize that is enough to give them a legal reason to search your car. And unless you left your stash somewhere else, they are going to find it.

The same result occurs when you smoke pot while you are driving. If you are unlucky enough to get stopped for something, they are going to smell the marijuana, and your car is going to get searched.

Once you are arrested, it is extremely difficult to challenge the search. As you might guess, it's almost impossible to prove the officer didn't smell marijuana - even if they don't find anything. Unfortunately, that can be abused, but that's another article. What you need to know is that if the officer smells marijuana, he can search your vehicle, even if you don't give consent. So don't do it.

If you're reading this too late, and want to talk to us about representing you, give us a call at (254) 296-0020, or fill out the contact form on this page.

Walter Reaves
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Criminal Defense Attorney Walter Reaves has been practicing law for over 35 years.