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Even in places where recreational marijuana has been legalized, possessing more than the designated amount puts you at risk for both misdemeanor and felony charges. Which is to say it's (still) tempting to panic if you get stopped by cops with weed in your possession. Some people panic so much that they eat their drugs. Better to destroy your stash than get busted with it, right?
Wrong. Eating your drugs to avoid a possession charge is quite possibly the worst thing you could do. Take it from Texas lawyers Will Hutson and Chris Harris, who wrote the fun and informational song "Don't Eat Your Weed." We recently spoke with Hutson in search for some details on the nuts and bolts of eating weed and the law. Here's what he had to say.
VICE: What inspired you to write the song "Don't Eat Your Weed"?
Will Hutson: Y'know, nobody really likes songs about breach-of-contract. The biggest contract you can breach is a marriage, but I don't do family law, so I couldn't really go that route. Chris and I were sitting around one day talking about criminal law. He does mainly contracts and stuff like that. He does civil law, and I do the criminal side. And he was just blown away when I told him that it's not an uncommon thing in the State of Texas for a person who gets pulled over with marijuana to try to hide it or throw it away. It's not uncommon for a misdemeanor to turn into a felony that's punishable by up to ten years in prison if you try to hide or destroy evidence with police officers present and you know that they are undertaking an investigation.
So we started toying with the words and the idea. To give Chris credit, he wrote 90 percent of the song. It came out of him like puke from a prom date. It was real fast and furious. They say the best songs are written in under ten minutes, and this one sorta wrote itself. So that was our inspiration. It was kind of just a discussion about criminal law.
One of the lyrics from "Don't Eat Your Weed" is, "Don't turn a Class B into a felony / By tampering with evidence / Don't be a dumbass / Don't destroy your stash." What's the difference between a misdemeanor and a felony in this case?
Generally speaking, any offense that has a punishment range of a year or less is a misdemeanor. In Texas, possession of four ounces or less of marijuana is a misdemeanor. But if I attempt to eat it... Now you've got possession and tampering with evidence, a felony.
But can I be really be arrested for possession if I eat ALL of the drugs first?
The answer is "sure." They will arrest you if you eat your drugs. The question is whether or not they're gonna be able to prove it, but they can arrest you for anything if they have probable cause to arrest. It's kind of hard to answer that question because it's on a case-by-case basis. It's going to be based on what the officer observed and what his statement is going to be. Typically what you see is the person gets pulled over for possession, and the officer may see some sign that they were in possession of marijuana—like shake on the floor or something like that—and then they'll say, "I saw them put something in their mouth and chew it up real fast, and I told them to spit it out, but they wouldn't." So it's really more of a cussing match at that point as to who a jury is going to believe.
Could the police detain me until I naturally expel the evidence from my body?
I can guarantee you it's not gonna turn out looking the same as it went in unless it's, you know, like these movies like Midnight Express where people are swallowing balloons full of heroin to smuggle them into the country. Weed is not going through your system unchanged. It's going to be metabolized to a certain extent. They're never gonna see that.
What evidence can law enforcement use to prove possession and evidence tampering then?
It's gonna be based on what they saw at the scene. So often, they hang their hat on a combination of three things: They'll use the terms "totality of the circumstances" and "my experience and training." They love to say things like, "Based on the totality of the circumstances... and my experience and training... I know that it was marijuana they were chewing, I told them to spit it out, but they wouldn't, and therefore that is tampering with evidence because I let them know an investigation was ongoing." It just snowballs from there. There are ways to fight it, but you do have to take it to a jury trial in order to do that. Prior to a trial, all you're doing is haggling with a prosecutor.
Could I argue I didn't realize the drugs I was eating would be considered evidence in a criminal trial?
The moment police pull you over, an investigation has begun. Now, granted, the investigation is going to be initially limited to whatever [alleged] illegal act you were stopped for—making an illegal left turn, running a stop sign, something like that. The law doesn't say that the investigation has to be for a specific item. It just has to say an investigation has begun. So, if the cops pull you over and they see you trying to throw shit out of the window, you're going to get a tampering charge because an investigation has begun, you're aware an investigation has begun, and you're doing what you can to get rid of an illegal substance.
Let's say I'm not being pulled over by a cop, but I see a cop walking toward me and I want to eat the weed before the cop can smell it.
Well, at this point, there's no investigation. You're not even describing anything that is recognized under law as any sort of interaction between police and the public. If you're walking down the street minding your own business—we're living in a perfect world in my example—and a police officer says "hey, can I talk to you?" you're free to say "hell no!" and keep walking. You don't have to stop and talk unless that officer displays some sort of authority and commands you to stop. The moment the officer says, "Halt, stop, don't move!" you are seized. At that point, you need to shut the fuck up, you need to hush, and you only give them identifying information and don't lie about who you are.
I used to say "I'm exercising my right to remain silent." I don't say that anymore, because there was a horrible case that came down from the Supreme Court that basically says the state can use your exercise of that right against you. It's a crazy case. So this is what I tell people now: Instead of saying "I'm going to be silent," the moment they start asking questions, say, "I'll be happy to give you my name and address, but anything else you need to know, you need to talk to my lawyer." And just keep saying the word lawyer. "Lawyer. Lawyer. Lawyer." Just like, "There's no place like home, there's no place like home..." Just keep saying, "Lawyer, lawyer, lawyer," because they'll [often] get the meaning and leave you alone.
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