Two drivers are stopped on the same night with the same small bag of marijuana. One goes home with a referral to a class. The other is booked into the Harris County Jail on a Class A misdemeanor and may hear from a federal agent. The difference is the handgun in the second driver's console. Brian Foley explains in this video.
The diversion policy
The Harris County District Attorney's Misdemeanor Marijuana Diversion Program allows most people found with up to four ounces of marijuana to avoid arrest and charges by completing a short class. It has kept tens of thousands of cases out of the courts. It has exclusions — and the most important one is a firearm.
What the gun changes
Unlawful carrying of a weapon. Under Penal Code § 46.02, a person may carry a handgun in a vehicle only if, among other conditions, they are not "engaged in criminal activity, other than a Class C misdemeanor" traffic offense. Possession of marijuana is a Class B misdemeanor. That means the moment marijuana is in the car, the otherwise-lawful handgun becomes unlawful carrying — a Class A misdemeanor — and the marijuana is charged too.
No diversion. The policy excludes cases involving a weapon. Both charges are filed.
Federal exposure. An "unlawful user" of a controlled substance who possesses a firearm commits a federal felony under 18 U.S.C. § 922(g)(3). Harris County cases with a gun and marijuana are periodically referred to the ATF and the U.S. Attorney, particularly where there is a prior record or a larger quantity. See our post on the Supreme Court's decision on marijuana users and firearms.
Defending the combination
The two charges depend on each other, which is the opening. If the marijuana possession fails — no proof of knowledge, a suppressed search, a lab that reports hemp-consistent THC levels — the "criminal activity" element of unlawful carrying fails with it, and the gun charge collapses. Both charges usually begin with a single search, so a motion to suppress addresses both at once. And where the evidence holds, negotiating the marijuana charge to a Class C resolves the weapon element as well.
Brian Foley and Luis Baez know how the DA's intake division applies these policies because they applied them. Call or text (713) 703-1718 for a free consultation.