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In Austin, 1 in 4 Pot Busts Doesn’t Lead to Arrest
Austin police have the discretion to ticket - instead of arrest - people for smaller amounts of pot possession.

Voters in Colorado and Washington state elected this week to legalize marijuana for recreational use. In Texas, the drug remains very much illegal. But a state law passed five years ago has resulted in thousands of people in Travis County avoiding arrest when they’re busted with small amounts of pot.

Back in 2007, State Representative Jerry Madden (R-Plano) authored a bill to give police officers the option to cite and release someone caught with less than four ounces of marijuana. 

“The reason for that was to save costs for some of our [police] departments, so that they had more people that would be available on the streets, instead of taking the time to bring very low-level offenders in and book them,” Madden said. “They were going to be released very shortly anyway.”

The Austin Police Department’s policy manual has a list of conditions that disqualify someone from being cited and released for marijuana possession. Those conditions include being really drunk, not having ID, having a warrant out for your arrest, or refusing to sign the citation. APD says the suspect must be a Travis County resident to avoid arrest, even though the law was enacted statewide. 

Since 2009 – APD has busted almost 18,000 people for marijuana possession, according to numbers obtained through an open records request. Since 2009, 25.4 percent of those suspects avoided being arrested because of Madden’s law, according to data from APD and Travis County Justice of the Peace District 5, which handles cite and release cases for local police.

Credit Nathan Bernier, KUT News

“It just saves time. Not only for the officer, but it also provides resources for the 911 calls,” says APD spokesperson Anthony Hipolito. “It keeps our response times quicker. It’s a safety net for the other officers on the street."

To clear up a common misconception – citations for pot possession are more serious than a traffic ticket, which is considered a Class C Misdemeanor.

Possession of marijuana fall under the more serious Class B and Class A misdemeanor categories. It just depends on how much marijuana you have. Less than two ounces is a Class B. Two to four ounces is a Class A. An appearance in court is required. 

Being found guilty of a Class B misdemeanor could land you in jail for 180 days with a fine of up to $2,000. Class A misdemeanors are twice that.

Criminal defense attorney Paul Quinzi specializes in marijuana cases. He says for first time offenders at least, those maximum punishments are unlikely in Austin.

“Possession of marijuana in Travis County is treated a lot more leniently than it is probably, certainly anywhere else in Texas, once it becomes a case, and once it gets in front of the prosecutors,” says Quinzi.

Quinzi says many of his clients are able to have their punishment reduced to a Class C misdemeanor by agreeing to take a 15 hour drug offender education program. But he says there can still be serious implications, particularly for people who are arrested and have their mug shot taken at the Travis County jail.

“If you have been arrested in Travis County, if you put your name into Google, one of the first things that may come up is that "Busted!" magazine online,” says Quinzi, referring to a website that claims to have the largest arrest and mug shot database on the internet.

“I’m sure there are very few employers who are going to hire you without Googling you first. So even without going through the process of the background check, that information is still out there for the whole world to see,” he says.

A bill to be filed in the next state legislative session in January aims to change that. State Representative Harold Dutton (D-Houston) will propose legislation to reduce possession of less than an ounce of marijuana to a Class C Misdemeanor. Then it really would be like getting a parking ticket, except he his bill includes a mandatory class on the health risks of smoking marijuana.

“I have been in judge's courts in Harris County where they have showed me and said, ‘Look, look how many cases I have up here for these small amounts of marijuana. I’ve got 22 cases up here today and 20 of them are for small amounts of marijuana.’ I think we’re wasting a whole bunch of resources on this,” says Dutton.

But the bill faces slim odds. Dutton says he has filed a similar version of his bill in the last four sessions. None has passed.

Update on Nov. 16, 2012: Dutton has filed his legislation. House Bill 184 would reduce penalties for less than two ounces of marijuana or "synthetic cannabinoid" to a Class C Misdemeanor. He also filed a separate bill that would reduce possession of less than a gram of harder drugs from a state jail felony to a Class A Misdemeanor. Thanks to the criminal justice blog Grits for Breakfast for the heads up. 

Nathan Bernier is the transportation reporter at KUT. He covers the big projects that are reshaping how we get around Austin, like the I-35 overhaul, the airport's rapid growth and the multibillion dollar transit expansion Project Connect. He also focuses on the daily changes that affect how we walk, bike and drive around the city. Got a tip? Email him at Follow him on Twitter @KUTnathan.
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