512 – Misdemeanor Marijuana Diversion Program
I. Purpose
The Misdemeanor Marijuana Diversion Program (MMDP) is a voluntary program offered through the Harris County District Attorney’s Office to divert ALL misdemeanor possession of marijuana cases from jail.
II. Policy
This policy provides guidance to divert ALL misdemeanor possession of marijuana cases from jail.
III. Procedures
A. Eligibility:
A person is eligible to participate if he or she is 17 years of age or older and:
1. Is detained or arrested for possession of marijuana (POM), 4 ounces or less (excluding “Drug Free Zone” POM offenses);
2. Possesses sufficient identifying information;
a. Some form of government-issued photo identification is preferable.
b. If government-issued photo identification is not available, deputies should use the Harris County Sheriff’s Office (HCSO) computer system, mobile computing device, portable Automated Fingerprint Identification System (AFIS), etc., to confirm the validity of the personal information provided by the person.
3. Has no additional charges incident to the detention or arrest other than Class C misdemeanor citations;
4. Has no outstanding warrants or holds other than Class C misdemeanor warrants; and
• If the offender has a Class C misdemeanor warrant, he or she should be arrested for the warrant and given an opportunity to participate in the MMDP provided he or she meets all other program requirements.
5. Is not currently on bond, deferred adjudication, or probation in Harris County or another jurisdiction for any offense other than a Class C misdemeanor offense.
6. Juveniles will continue to be diverted through the juvenile justice system.
B. Disqualifiers:
A person is not eligible to participate in the MMDP if he or she:
1. Is on bond, deferred adjudication, or probation in Harris County or another jurisdiction for any offense other than a Class C misdemeanor offense;
2. Possesses marijuana with the intent to deliver;
• Offenders possessing marijuana with the intent to deliver will be arrested and charged with that offense.
3. Possesses a misdemeanor amount of marijuana in a “Drug Free Zone”;
4. Possesses a misdemeanor amount of marijuana in a corrections facility; or
5. Is currently in the Misdemeanor Marijuana Diversion Program.
6. Unless an offender has a license to carry a handgun (LTC), an offender who possesses a handgun and marijuana will be charged with the gun offense, and the marijuana will be submitted as evidence for trial.
C. Law Enforcement Procedures for Offenders who are Eligible for the MMDP:
1. The deputy detains an offender for possession of 4 ounces or less of marijuana. All misdemeanor amounts of marijuana shall be weighed at the scene to determine the offender’s eligibility to participate in the diversion program.
2. All marijuana evidence shall be sealed and packaged as outlined in HCSO Patrol Policy #212 – Narcotics Evidence and Narcotics Destruction. In addition, the deputy shall note on the evidence package “Diversion Program” and submit it to the HCSO Property Room for safekeeping, NOT the Harris County Institute of Forensic Sciences lab.
3. If the offender is carrying a firearm in his or her vehicle without a LTC and is in possession of a misdemeanor amount of marijuana, the deputy should ONLY file the Unlawful Carry of a Weapon charge and submit the marijuana as evidence.
NOTE: Marijuana taken in such incidents shall be submitted to the Institute of Forensic Sciences.
4. The deputy shall run a criminal history check to determine if the offender is wanted and eligible to participate in the program and specifically determine if the offender is:
a. An adult, age 17 or older;
b. Detained or arrested for possession of marijuana, 4 ounces or less (excluding “Drug Free Zone” POM offenses); and
c. Has no additional charges arising out of the incident or arrest other than Class C misdemeanor citations.
5. Contact the District Attorney’s Office Intake Division to confirm probable cause and to determine if the offender is currently in the MMDP and on bond, deferred adjudication, or probation for a Class B misdemeanor offense or higher. If the Intake prosecutor states the offender is NOT eligible for the MMDP, the deputy shall arrest the offender.
6. Offer the offender an opportunity to participate if the offender is eligible, using the MMDP notice form.
7. If the offender wishes to participate, the deputy shall:
a. Complete the identifying information on the top portion of the program notice form located on the Harris County District Attorney’s Office website (http://app.dao.hctx.net/OurOffice/MMDP.aspx) and the HCSO Intranet “Common Forms” link in the “Patrol” folder.
b. Explain that by signing the MMDP notice form, the offender promises to complete the program requirements within ninety (90) calendar days of his or her arrest, AND agrees:
i. Not to break any law,
ii. To pay a $150 program fee (may be reduced or waived if indigent), and
iii. To complete a 4-hour cognitive class.
c. Explain that failure to complete the class or community supervision will result in the filing of charges and issuance of a warrant for the offender’s arrest.
d. Have the offender sign the acknowledgement and acceptance on the program notice form, including any contact information.
e. Provide the offender Page 2 of the MMDP notice form.
f. Release the offender from custody.
g. Do not file a DIMS transaction.
D. After the program notice form is completed, the deputy shall:
1. Include the offense report number on the MMDP notice form.
2. Scan the form and e-mail it to [email protected] or fax it to 713-437-8491.
3. Complete an offense report with specific probable cause to facilitate the filing of an arrest warrant if the offender fails to comply with the requirements of the program. Additionally, the offense report must include a notation whether or not the offender opted to participate in the MMDP.
4. Scan a copy of the completed MMDP notice form into the offense report. After ensuring the form has been successfully scanned into the offense report by the designated office personnel, the form may then be shredded as outlined in HCSO Patrol Policy #207 – Reports.
5. All marijuana evidence shall be sealed and packaged as outlined in HCSO Patrol Policy #212 – Narcotics Evidence and Narcotics Destruction. In addition, the deputy shall note on the evidence package “Diversion Program” and submit it to the HCSO Property Room for safekeeping, NOT the Institute of Forensic Sciences lab.
E. Procedures for Offenders Who Do Not Desire to Participate:
1. Explain that the charge will be filed immediately, bond will be set, he or she will be booked into jail, and the case will proceed through the courts.
2. Complete the top portion of the MMDP notice form, and have the offender initial in the bottom box that he or she does not desire to participate.
3. After the MMDP notice form is completed, scan the form, and e-mail it to [email protected] or fax it to 713-437-8491.
F. Exception:
In special circumstances that justify the filing of formal charges even if the offender is otherwise eligible for the MMDP:
1. The arresting deputy shall obtain approval from an on-duty supervisor.
2. After receiving approval from a supervisor, either the arresting deputy or the approving supervisor shall contact the District Attorney’s Office Intake Division and explain the reason for requesting an exception.
3. If the prosecutor agrees that special circumstances exist, formal criminal charges shall be filed.
4. If the Intake prosecutor does not agree that the eligible offender should be excluded from the program, the deputy shall note the District Attorney’s Office declined the charge and proceed with offering the offender the opportunity to participate in the program.
Revision
This policy has been revised on the below listed dates:
September 18, 2014 November 12, 2015
October 2, 2014 February 28, 2017
October 20, 2014 May 3, 2021
August 17, 2015