A THC vape pen on a desk

How to Get a THC Vape Pen Case Dismissed

By Jose Ceja
Managing Attorney

As attitudes regarding marijuana continue to shift and become more liberal, more and more states and cities are legalizing or decriminalizing marijuana. As of November 2022, 21 states, two territories and the District of Columbia have enacted measure that permit marijuana for recreational use. Unfortunately, Texas is not one of those States, and although legalization seems inevitable, it likely will not occur for some time. 

Perhaps as a result of widespread legalization, however, marijuana products have become more widely available, including products made with concentrated THC oil. In the Houston area, there has been a rise in arrests for possession of marijuana THC vapes and cartridges. It is very important to understand that Texas laws regarding the possession of THC vapes and concentrates is very harsh. Under Texas law, the possession of THC vapes pens is subject to more severe punishment than possession of marijuana flower because it is classified as Penalty Group 2 drug. Under Texas Health and Safety Code 481.103, tetrahydrocannabinols from sources other than marijuana are all punished as felonies. The exact punishment you are facing is based on the weight of the THC vape cartridges and oil, but it is possible to face a second-degree felony (punishable by up to 20 years in prison) for a personal use amount. 

If you have been arrested for possession of THC vape pens or cartridges, it is important that you hire a skilled and experienced attorney to maximize your chances of protecting your record and your future. Although every case is different, it is possible to get a THC vape pen case dismissed. 

The first thing an experienced marijuana possession attorney will want to do is obtain the evidence in your case. In a typical THC vape case, this will include a police report, videos and lab reports. An effective marijuana possession should have a “plan A,” “plan B,” and a “plan C” to get your case dismissed and “plan A” should always to aggressively challenge the evidence. 

Drug cases – including THC vape pen cases – almost always involve a police detention or search. Very frequently, law enforcement officers will exceed their authority and violate a person’s rights. If it can be established that a defendant’s rights were violated, and that violation led to the discovery of a THC vape pen or other evidence, it is sometimes possible to convince the judge to suppress the evidence, meaning that the evidence will not be permitted in court as evidence against the defendant. 

There are countless examples of potentially illegal police actions in THC vape pen cases. Some of these include bad traffic stops, illegal searches of homes or vehicles, or frisks that exceed their purpose (in some instances the police can frisk a person for their own safety to look for guns and large objects, but many officers think this frisk entitles them to empty a suspect’s pockets). 

The fact that a vape containing a THC cartridge looks the same as a one containing CBD (which is legal) also potentially gives rise a challenge as to whether the police had enough evidence to arrest someone in the first place. Lack of probable cause to arrest could form an additional basis to get evidence suppressed.

In addition to seeking to get evidence suppressed, a marijuana possession attorney should also challenge whether it can be proved that a defendant knowingly possessed the THC vape pen that led to the arrest. Under Texas law, it is the burden of the prosecutor to show that a defendant knowingly possessed a THC vape pen. Although it isn’t required that a person by the owner of the THC vape pen, the evidence must establish beyond a reasonable doubt that a defendant knowingly possessed a THC vape pen cartridge. If someone unknowingly left a THC vape pen in your car, and you are pulled over, for example, you might not be guilty of possession 

An experienced marijuana defense attorney should also challenge the laboratory results. Because of changes in the law, it can now be argued in THC vape pen cases that the State cannot prove that a substance is not legal hemp (since they are visually indistinguishable). In order to be convicted of possessing a THC vape pen, it has to be established that the substance contains more than .3% THC but the reality is that many labs lack this ability. 

Even if it looks like a THC vape pen case can be proved, it is often still possible to obtain a dismissal from a sympathetic prosecutor. Even though Texas laws are harsh, the reality is that many prosecutors recognize that marijuana is not fentanyl and that it is overly harsh to brand someone a felon for possession of something that will soon be legal in most of the country. For this reason, an experienced marijuana defense attorney can often negotiate a dismissal of a case informally or through a pre-trial diversion.

Properly defending a THC vape pen case requires an experienced attorney who is prepared to do a thorough job. Attorney Jose Ceja is a former drug prosecutor who has handled hundreds of marijuana cases in his career and has obtained dismissals of THC vape pen cases throughout the Houston area. If you are charged with possession of THC vape pens anywhere in the Houston area, call today for a free consultation.  

About the Author
Jose Ceja is the managing attorney of Ceja Law Firm. He has practiced law since 2007 and has devoted his career to the practice of criminal law. Mr. Ceja began his legal career as a felony drug prosecutor, where he prosecuted drug, gang, and violent offenses. Mr. Ceja has first or second chaired almost 100 trials, including murders, drug cases, DWIs, and assaults. In his career as a defense attorney, he has regularly obtained dismissals, not guilty verdicts, and grand jury “no bills” in a wide variety of cases.