You Bought It From a Store. Police Say It Is a Felony.
Texas THC cases can present an unusual problem.
A person may purchase a vape, gummy, edible, flower product, or other cannabinoid product from a retail store and later encounter a police officer who believes the same product constitutes an illegal controlled substance.
The legal analysis may involve far more than the words "THC" appearing on a package or laboratory report.
The identity of the cannabinoid, its concentration, the product's composition, the laboratory methodology, the applicable law on the date of the alleged offense, and how the substance was obtained may all matter.
Taylor Defense Firm examines what the product actually was and what the State can actually prove.
Hemp Changed the THC Analysis
Texas law distinguishes lawful hemp from controlled marijuana and certain controlled THC substances, and cannabinoid law has continued to develop.
Do not assume that all Delta-8, Delta-9, THCA, hemp-derived, or retail cannabinoid products are legal or illegal.
The analysis can depend upon the particular substance, concentration, manufacturing process, testing methodology, offense date, and applicable law.
Delta-8 THC
Delta-8 cases can involve questions concerning:
- • whether Delta-8 was naturally occurring or manufactured/concentrated
- • what the laboratory actually identified
- • how the substance was produced
- • the concentration
- • the form of the product
- • applicable Texas law at the time of the alleged offense
- • packaging and retail representations
- • the accused person's knowledge concerning the product
The current legal status should not be oversimplified.
Delta-9 THC and Hemp Products
The analysis of a purported hemp product may involve Delta-9 THC concentration and applicable statutory and regulatory definitions.
The existence of THC does not by itself answer every legal or evidentiary question.
Questions may include:
- • What concentration was measured?
- • What testing method was used?
- • Was the material tested representative of the entire product?
- • Was the product plant material, an edible, a vape, or another preparation?
- • What exactly does the laboratory report establish?
THCA and Laboratory Testing
THCA can complicate cannabinoid testing and testing methodology matters.
The defense should determine what compounds were measured, how the laboratory calculated the result, and whether the laboratory analysis corresponds with the legal definition applicable to the alleged offense.
The Package Is Evidence Too
In a retail cannabinoid case, packaging may contain potentially important evidence concerning:
- • product identity
- • cannabinoid concentration
- • manufacturer
- • batch or lot number
- • QR codes
- • certificates of analysis
- • warnings
- • representations that the product is hemp-derived
- • retail source
Packaging should not automatically be treated as proof that its claims are accurate, but it may be important evidence concerning both the product and the purchaser's state of mind.
Certificates of Analysis
Some commercial cannabinoid products contain or link to a Certificate of Analysis.
Relevant questions may include:
- • Does the certificate correspond to the correct product?
- • Does the batch number match?
- • When was the testing performed?
- • What cannabinoids were tested?
- • What concentrations were reported?
- • Is the laboratory report relied upon by law enforcement testing the same product?
Aggregate Weight and Edibles
Controlled-substance cases involving gummies, food products, liquids, or other mixtures may create significant weight issues.
A small amount of an alleged controlled cannabinoid contained within a much heavier edible or mixture can create consequences that are not obvious from simply looking at the product.
Therefore, determining exactly what was tested, what was weighed, and the legal basis for the State's weight allegation can be critical.
Representative Sampling
If officers seize numerous gummies, cartridges, packages, or similar items, determine which items were actually tested.
Relevant questions may include:
- • Were all products tested?
- • Were only selected samples tested?
- • Were different flavors, batches, packages, or products combined?
- • What supports treating an untested item as chemically identical to a tested item?
Retail Purchase and Criminal Intent
The fact that a product was purchased openly from a store does not automatically resolve whether possession is lawful.
But the circumstances of a retail purchase may still be relevant to what the purchaser knew or reasonably believed about the product.
Evidence may include:
- • receipts
- • credit-card records
- • store location
- • packaging
- • advertising
- • product displays
- • manufacturer information
- • certificates of analysis
The Date of the Alleged Offense Matters
Texas cannabinoid law has changed and continues to develop.
The legal analysis should therefore begin with the law applicable on the actual date of the alleged conduct rather than assuming that today's law necessarily answers the question.
Search and Probable Cause
THC cases may also involve constitutional search issues.
Questions can include:
- • Why did police search?
- • What did the officer claim to smell or observe?
- • Was the substance distinguishable from lawful hemp by appearance?
- • Was consent obtained?
- • Was there a warrant?
- • What information established probable cause?
- • Did the scope of the search exceed the justification for it?
For a detailed examination of search and seizure issues, see the Search & Seizure Defense page.
Taylor Defense Firm's Approach
Depending upon the case, the defense may examine:
- • the actual product
- • packaging
- • photographs
- • receipts
- • certificates of analysis
- • batch numbers
- • manufacturer information
- • police reports
- • body-camera footage
- • laboratory reports
- • laboratory methodology
- • chain of custody
- • weight calculations
- • search-warrant materials
- • the law applicable on the alleged offense date
The objective is not to assume that a product is legal because it came from a store or illegal because police arrested someone for possessing it.
The question is what the product actually was and what the State can prove under the law applicable to the case.
Request a Case Evaluation
If you are facing a Texas THC or cannabinoid charge, Taylor Defense Firm can examine the product, packaging, laboratory evidence, search, alleged weight, and law applicable to the date of the alleged offense.
REQUEST A CASE EVALUATIONEducational Notice
Information on this page is provided for general educational purposes and is not legal advice. Criminal cases depend upon their individual facts and applicable law. Viewing this website or contacting Taylor Defense Firm does not by itself create an attorney-client relationship.