THC Wax Can Result in Felony Drug Charges in Texas

The new trend in ingesting marijuana is clearly vaping. Many cannabis users have taken to vaporizers. Vaporizers don’t burn, so there are no “free radicals” that are inhaled into the lungs. It is a more pleasant experience for many users, and, while research has yet to back this up, there is widespread belief that the vaping is healthier. Vape pens can also be easier to handle, less conspicuous and emit vapor instead of smoke.

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However, many do not realize that possession of the THC wax or oil (sometimes called “shatter,” “honey wax” or “honey oil”) used in vaporizing can be charged as a felony under Texas law, no matter how little of it is possessed. That’s because the material is considered a concentrate under the law, and charged as a higher offense than loose marijuana that has not been chemically or structurally altered. While misdemeanors are very serious, a felony conviction can be life-devastating.

Vaporizers work by applying such a high degree of heat — more than 300 degrees — to the materials that they literally turn into vapor, which is inhaled. If you apply that level of heat to marijuana buds, they will simply catch fire. To create a material that can be vaporized, manufacturers extract resin containing THC from the marijuana plant.

However, doing this makes it a “concentrate” under the eyes of Texas law. Marijuana is separate from other criminalized substances in Texas; it does not fit under a penalty group of controlled substances. However, the definition of marijuana (spelled “marihuana”) in Texas Health and Safety Code Sec. 481.002(26)(A) specifically excludes “resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin.” THC wax or oil, therefore, is a tetrahydracannibinol (THC) under the law, and is placed into Penalty Group 2, like hashish.

Many people know that possession of a small amount of marijuana is either a Class B misdemeanor (if the amount is two ounces or less) or a Class A misdemeanor (if the amount is between two and four ounces). Misdemeanors are serious, and a conviction can have grave consequences, especially to your financial aid if you are a University of Texas student. You could even go to jail. However, a marijuana defense lawyer will often be able to negotiate deferred adjudication or a lesser charge for such misdemeanors, especially if is the client’s first charge. Austin even has a cite and release program, so many such offenders never see the inside of a jail cell.

Since THC wax is not considered marijuana under the law, however, possession charges do not result in a possession of marijuana charges. Instead, that person will be charged with possession of a Penalty Group 2 controlled substance — a state jail felony for less than a gram, and a Class 3 felony for one to four grams.

The consequences of a felony conviction are much graver than those of a misdemeanor conviction. The range of penalties is much higher. For a state jail felony, a person will face 180 days to two years in prison, and a fine up to $10,000. For a Class 3 felony, a person faces two to 10 years in prison and a fine up to $10,000.

There are also a range of collateral consequences that come from a felony conviction. You will never be able to possess a firearm under federal law, and you are excluded from a broad range of job, sometimes for the rest of your life.

The distinction made for THC wax and oil is unfortunate. While the substance does have a higher concentration of THC than most marijuana, it is usually ingested at a much slower rate. Because vaping is easier on the lungs, patients using marijuana for medicinal purposes may do it rather than smoking. Since Texas medical marijuana laws are extremely limited, these people have very few options.

Kevin Bennett is an Austin criminal defense lawyer and a member of the National Organization for Reform of Marijuana Laws (NORML).

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