So...say your kid went to Texas and was caught with 2 oz of weed...

Parent Cafe
141

@Sybylla – in Texas, there is a different level of crime & penalties that are set depending on whether the amount possessed is “under 2 ounces” – so that is where the language comes from. The son was charged with the crime of possession of less than 2 ounces. So legally it is all the same law – 1 gram, 1 oz. 1.9999 oz. All “under 2 oz.”

So that is the source of the confusion – one is the amount specified in the statute, the other is the son’s belief as to the actual amount that was weighed by the officer.

It would have to be sent to the crime lab and weighed again-- so that would be the determinative factor.

And to others who have suggested the possibility that the charge might be dropped because 1 gram is so small… Texas law does not have an “1 gram or less” provision. If they can measure it, they can charge it. And yes, the Judge can definitely consider the amount in determining sentence, and the DA can consider the amount in charging.

That would have been one more advantage in having a local lawyer early on – the lawyer could have spoken informally to the DA and at least in theory convinced the DA to dismiss the case. Sometimes there is a little bit of back & forth trading that goes on — I always got better deals from DA’s who I happened to be friendly with, back in the day — though part of that friendliness came from treating those DA’s with respect and not asking for unreasonable favors.

I practiced in California, not Texas – but I do know that in my state it was possible in some types of misdemeanor cases for the lawyer to completely waive the presence of the client – so occasionally I would have an out-of-state client contact me, and I would take care of everything, from court appearances through disposition, without the client ever having to return to the state. Obviously only for minor offenses that did not typically involve jail time.

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@calmom Would it need to be sent to a crime lab and weighed again if he had stipulated the amount in a written confession? I don’t know if he wrote a confession but I know he spent a night in jail and tried to be as forthcoming as possible with no legal advice at his disposal. I’ll ask him if they had him write anything. I don’t know if they did but if they had him write and if he stipulated an amount based on how much they told him he had, I wonder if the lack of a crime lab weigh in could be a possible out. I will suggest he explore that with his lawyer.

143

@BunsenBurner Seriously. Already thousands spent just by the “criminal”. That should be enough to get everything on an even keel in the world of karma. For the municipality and all of the associated entities, too bad this warrants all those resources that could go to so many more worthy purposes.

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This is why he needs communication with a local lawyer. Yes, it will matter if he waived right to counsel, signed a confession, exactly what the confession says, etc. Suggest he miss work and spend all day Monday focusing on this.

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@grandscheme – they don’t need to have the crime lab report in order for someone to plead guilty – but they would need it to go forward for trial. I think in most jurisdictions it is routine to send any substance that is believed to be a controlled substance to the crime lab for analysis as well as weighing – and that may be the reason they gave your son a court date that is 5 months out from the time he was arrested. Because sometimes the crime lab report – or lack of one – leads the DA to dismiss the charges.

Back in the day, if I was representing someone who wanted to contest charges like this, I would always have had the lab report in hand, and I might have followed up by requesting retesting from my own lab – that buys time and there is always the chance that an error is made somewhere along the line – including that the crime lab manages to lose the evidence. Obviously this costs some money and it would never have come up, for me in California, with a small-level marijuana case – as possession of that amount of marijuana was an infraction at the time, like a traffic ticket, punishable by fine only. But I fairly routinely did that in DUI cases, if the defendant had been smart enough to insist on a blood or urine test rather than going with the breathalyzer.

Have you checked the court index to verify status of the case? You can do a search here – http://24.173.220.139/McLennancc/CriminalRecords.aspx – it doesn’t give much info, just case number, date of filing, and charge – but sometimes cases get dropped or rescheduled for various reasons, and so it makes sense to verify that it is on calendar before traveling to court. You can view the Court Docket for the schedule for the upcoming week here - https://www.co.mclennan.tx.us/430/Court-Docket – click the link to “CRNTWKDOC (PDF)” and it will pull up the schedule of all cases on calendar for the week. So if for any reason your son doesn’t see his name on calendar for the day & time he was told to appear, he’d want to call the clerk’s office in advance to confirm.

You said your son told you he had a lawyer but was dismissing him. Did your son hire a private lawyer, or just arrange a consultation – or is this lawyer someone who was appointed to represent him in court? The court docket will tell you if they have an attorney-of-record tied to the case.

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Just wondering what happened with the others in the car with him? Do they have to go to court too? Have they hired a lawyer? Have they been and what was their result?

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There most likely was no written statement or confession- finding the drugs was all they needed. They still have to be sent to a lab for testing.

148

I was a judge in another state for several years (not TX). We have had many fine public defenders. The defendants did best when they had an attorney. Some private attorneys got better results and clients than public defenders and some didn’t. It is the luck of the draw when you have a PD, but better than trying to represent yourself.

149

How OP reacts, what she can impact- and how her son will fare- is very dependent on laws, practices, and precedent that apply locally.
It’s not CA or NY or a host of other states with a more liberal view.

At this point, my inclination is to go with the facts OP presents and the knowledge of attorneys on this thread, especially those in TX.

150

Hi all~

Thanks for being my squad. Really.

Just spent a chunk of time with son discussing the case and his options. So the details that I know better now first:

It was his car. A friend was driving it. He was sleeping in the backseat. It was 10:30pm on January 2. They had only been in Texas for about an hour and a half. There is a place where the speed limit drops from 65 to 50 mph. Apparently, there is a sign indicating the 50 mph zone that is easy to miss and the driver missed it. When the driver saw the next 50 sign, he immediately slowed down. He was stopped for doing 57 in a 50. The cop indicated he saw the driver brake when he saw the second sign so he must have missed the first sign. Yes, he did. At the end of it all, the driver was given a warning. Done.

In the meantime, the police claimed they smelled pot so the boys could fess up or the police would do a search. No one had smoked in the car that day. It was January 2. Some celebrating had happened on January 1, in a state where pot is legal. Son asked if they had grounds to search. They said the smell gave them grounds. I know plenty of you will say the kid is lying. He doesn’t really have a reason to. It is too late now, but this seems a loophole one could always be a victim of. The cops claimed to smell something. Let’s say they really didn’t smell something.

Son volunteered he had something. He went to the back to get his backpack and dig it out for them. It was a tiny amount, a gram.

The police then turned the car inside out digging for anything else. There was nothing else to be found. Since my son volunteered his contraband, he was taken to jail. The friends were not apprehended or charged with anything. They drove off in son’s car with his permission.

Son tried to reach bondsmen to get sprung. The phone he was permitted to use would only call within their area code. He could not call his friends or family. Eight different bail bondsmen would not bail him out because he was from out of state. One took mercy on son and called the friends so they would know son needed a lifeline. The friends scrounged up the $1000 to loan him to get him out of jail the next day.

I heard back from his lawyer tonight. I know many of you did not think that would happen. I have found colleges to be absolute about not whispering a word with regards to kids’ business but other scenarios don’t seem to be so absolute. Whatever, I received a long written response from the lawyer. This is the lawyer I had referred son to 5 months ago, personally recommended to me. He is from Dallas, not Waco. Son had retained him but has not been happy that lawyer could not come up with a palatable option. Lawyer had described the pretrial diversion option to son several times. Son in his infinite wisdom is choosing to plead guilty to get it over with and to not incur additional expenses. Lawyer and father and I disagree. Went over the various arguments against that but in the end, he has his heels dug in pretty deeply.

I shared with him points brought up by you all. One which had not come on his radar w his lawyer has to do with crime lab testing. If it turns out there is not a crime lab report. he may consider seeing if that would be grounds for dismissal. Otherwise, he is pretty set on pleading guilty. His (pot smoking) friends have convinced him that will not be the end of the world.

We checked the docket tonight and his case does not show on it anywhere. Hmmm.

He needs me to get notes to him of some of the strategies suggested by some of you that he will cover w his lawyer. Off to do that now. As long as I have given him the information to make an informed decision, it’s out of my hands. I disagree with his decision but that doesn’t matter.

Thank you again. To be continued.

151

Geez, now things are just getting stupid.

The OP’s son is entitled to a jury trial if he pleads not guilty and asks for one; but in Texas in misdemeanor cases that would mean a 6 person jury, and under Texas law the jury must be unanimous.

The jurors of course would all be folks from Waco, not exactly a bastion of liberalism.

I doubt that the OP’s son would want to take the case to trial …because it doesn’t appear that he has a legal defense. He would not be allowed to argue anything about circumstances of the police stop to a jury in any case – that’s something that has to be brought up by motion to a judge.

Waco does not have a public defender system – they just appoint local attorneys to represent criminal defendants who can’t afford to pay for a lawyer.

Anyway, to @grandscheme – I hope you can get your son to see the wisdom of working with a lawyer, and get a lawyer on board for him… or stick with the one he’s got, if the dismissing hasn’t yet happened. (The reason he gave you for dismissing the lawyer didn’t make any sense, anyway).

And obviously you shouldn’t be relying on advice from random posters on the CC board. Even those of us who are or were attorneys are strangers to the case and have no way of knowing all the facts. My experience as a lawyer was that whatever story my client told me was never the full story and never quite meshed with what was in the police report. Not necessarily because my clients were lying – just that people’s memories are fallible and police generally have a different take on things than the people they are arresting. So that’s just one more reason why a real-life lawyer working directly with the client is the logical way to go. Assuming your son is comes around to understanding that.

152

I have not read all of the responses yet so please forgive if I repeat.

You need to hire a good lawyer. There are plenty in Waco. Meet with him/her with your son. If you don’t like him/her, find another one.
Find out if there is a Deferred Prosecution Program in McLennan County, or where he will be going to court if he’s a first time offender.
Do every/any program offered to get case dismissed.
Do whatever needs doing to get charge expunged from record (likely another cost).
A very dear friend of mine had a young adult (in Texas) who had a class A misdemeanor and was able to do a program through a deferred prosecution program and then had the arrest expunged.
Getting the case dismissed is only part of it.
A good atty can vary. In the case above, they spent around 10K between bail, the atty fees, drug test costs, program costs, and expungement costs.

Good Luck

153

Is it reasonable to have a Dallas lawyer for a Waco case?

And, can the lawyer find out when the case is scheduled?

154

Not sure how he’ll be able to find that out without a lawyer in court with him.

Lawyers get that sort of information through discovery, typically well in advance of the court date.

A pro se (self-representing) defendant has the right to the same info, but he has to ask for it.

Having a lawyer & pleading guilty are not mutually exclusive options. Your son could go to court with an attorney which would protect him from getting screwed over because he is from out-of-town… preferably a local attorney, not some guy from Dallas who also might get the out-of-town raking over. (I don’t know if it happens routinely in Waco, but I sure saw a lot of it in my practice – it’s practically a hazing ritual.)

The local lawyer would know usual practices. He or she would know:


[QUOTE=""]

What the usual disposition is on these sorts of cases
Whether it is possible to arrange diversion or deferred adjudication to be coordinated with the other state

[/QUOTE]

And, of course, he would know how and when to ask for that crime lab report.

The problem is that it could be that a judge will come down hard in sentencing an out-of-stater for an offense that would result in a slap on the wrist for a local. Because some judges are just ornery SOB’s. Or they have the notion that they are going to “send a message” … or whatever.

As to the vehicle search, you are right, the cops can say they smell marijuana and that will be probable cause to search – and cops can lie about that and get away with it. On the other hand, marijuana has a very pungent and recognizable odor, and if “some celebrating” the previous day meant smoking in the car… I think its highly likely that the car still smelled the following day.

And yes – I agree with you, as I’ve been saying along, if your twenty-something son digs in his heels and refuses to listen to reason… then there’s not a darn thing you can do about it except save up your “I told you so” for some opportune moment in the distant future.

155

Someone who knows the local judges and prosecutors well is preferable. If it were my kid and my kid was following my advice, I’d go with someone in Waco.

Yes, definitely, that’s the day-to-day stuff lawyers do all the time. If the case is scheduled for the coming week, it should show up on that docket I linked to – with the caveat that as I don’t practice in Waco, I have no clue how accurate the printed docket on the website is.

@grandscheme – if your son’s name isn’t showing up on the docket for the day & time that he was told to appear, then it could very well be that the prosecutor has decided not to pursue the case and dismissed it. From what you describe, the amount of marijuana was minimal, and prosecutors are human being; some are actually very reasonable people who prefer to spend their time and energy prosecuting real bad guys.

But - and this is very important – your son can’t just assume the case has gone away and not show up. You need to figure out why the case is not on calendar because it could just be a misprint or error on the docket printout – or it could be a mixup that means that your son’s case is scheduled for a different day & time… and if your son doesn’t show up, a warrant could be issued for his arrest. Best to ask the lawyer to check – but your son might also call his bail bondsman and ask him to check… because this bit is crucial to a bail bondsman’s business. (If your son doesn’t show when he is supposed to, the bondsman loses $$$ … on the other hand, if the case is being dismissed – then the bondsman can get the bond released).

156

These two last posts from calmom make eminent sense. It’s both an inside view (even tho she practiced in another state) and practical. Please consider it. Regardless of time passed so far, it’s now time to get some of the right ducks lined up.

In the old days, when OOS college kids were routinely stopped in the south (so stories went, ) this was about a fine, getting it done and over with, making some money. We can’t know if that holds today. All the more reason to now get proactive, ramp it up.

157

I’m going to repeat myself because this thread keeps on popping up.

Get a lawyer.

There are no ifs, ands, or buts.

Get a lawyer.

He cannot defend himself, period. I can’t imagine what a Texas judge will do to him.

Get a lawyer.

I always have a lawyer for traffic tickets after getting screwed in traffic court when I was young. The cop perjured himself to the judge and there was nothing I could do. I actually was successful once by my younger self, but never again. You either pay the lawyer or the insurance company in increased premiums. Now my speeding tickets (one every 3 or 4 years) get pleaded to a non-moving violation or get tossed on a technicality.

Get a lawyer.

Abraham Lincoln - “He who represents himself has a fool for a client”

158

He has a lawyer. The one from Dallas.
He paid his own bail, there is no bail bondsman.
Hopefully he can connect with a Waco lawyer.
He has not considered not showing up in court.
He has not considered going to court without a lawyer.

159

Have the Dallas lawyer check to figure out why the case isn’t showing up on the docket. It’s a phone call o two that needs to be made Monday morning.

If the $1000 bail is the full cash bail amount, and if by chance the case is being dismissed because the prosecutor who reviewed it decided it wasn’t worth pursuing, your son can also get the money back. (And if there is a mixup about court dates and your son doesn’t show up at the right time or date, he’ll forfeit the amount… so definitely top priority is to confirm the date).

160

Yep. Fingers crossed. The lessons have definitely been learned. It would be nice if the prosecutor has dropped it. He will ask his lawyer to follow up in the morning.