In many cases, drug charges are filed as a result of improper searches and illegal seizures. If you have been charged with drug possession, you need a lawyer who knows how to spot weaknesses in the prosecution’s case.
As an experienced criminal defense lawyer, I am well-versed in proper police procedure. If your constitutional rights were violated, the court will often reduce the charges against you or even dismiss your case entirely.
Texas Drug Crime Law Is Complex
Unless you have a pharmacology degree, you will probably have a tough time deciphering Texas’s drug crime laws. Found under Chapter 481 of the Texas Health and Safety Code, the provisions that govern drug possession are a complex maze of rules and regulations.
Related crimes include possession with intent to distribute, drug manufacturing, prescription drug crimes, and drug trafficking. Because drug possession is a serious crime that can result in life-changing penalties, it is absolutely imperative to work with a Texas criminal defense lawyer who understands the law in this area.
Drug Possession Basics
Drug possession offenders are prosecuted based on three basic criteria: the type of drug, the amount of drug, and any aggravating circumstances. Aggravating circumstances include any behaviors or activities that exacerbate the possession, such as an intent to sell or taking drugs into a school zone.
Texas law also groups drugs into “penalty groups” that determine the severity of the charge. These penalty groups sort drugs based on their level of danger, the potential for abuse, and medical usefulness.
For example, penalty group 1, which includes the most dangerous drugs, imposes the strictest criminal sentences. While not an exhaustive list, here are some of the more common drugs that can land you in trouble with the law:
Keep in mind, even drugs that are legally available by prescription can still be considered illegal if possessed for non-medical purposes and without a doctor’s authorization. Indeed, the Texas Controlled Substances Act expressly makes provision for chemical compounds and prescription drugs that are not specifically listed by name.
Possession of Marijuana
Because it is the most common illegal controlled substance, marijuana has its own special classification under Texas drug law. The penalties vary widely depending on the amount of marijuana the accused had on his person at the time of arrest and how he intended to use the drug.
A charge involving less than two ounces is a Class B misdemeanor, which carries a maximum penalty of up to 180 days in jail and a $2,000 fine. By contrast, a conviction for selling more than 2,000 pounds of marijuana is a first-degree felony that can result in a life sentence. In some cases, first-time offenders may be allowed to participate in a “diversion program” that enables them to complete a rehabilitation program in lieu of serving any jail time.
You might also be wondering if Texas makes an exception for marijuana possessed or used for medicinal purposes. The short answer is “no,” there is no broad-based exemption for medical marijuana as provided for in many other states. However, Texas does provide a limited exemption allowing patients with certain medical conditions to obtain cannabis oil, which contains the same active ingredient as marijuana, but in a lower concentration.
Such cannabis products can only be obtained with a physician’s prescription and through a state-licensed dispensary; patients are not allowed to cultivate their own marijuana or obtain cannabis products from a non-licensed dealer.
What Happens If I'm Arrested for Drug Possession Near a School?
As noted above, possession of drugs in a “school zone” is considered an aggravating factor in Texas law that can significantly increase your sentence if convicted. Actually, the law is much broader in scope. The Texas Health and Safety Code defines a number of areas as “drug-free zones,” including any of the following:
Elementary and secondary schools, whether public or privately owned
Institutions of hiring learning, including any junior colleges or professional schools
Outdoor playgrounds that contain at least three or more “play stations,” such as swing sets or slides, and are not otherwise connected to a school
Video arcades that are open to members of the public ages 17 and under
Public swimming pools
Any other recreational facility or gymnasium open to members of the public ages 17 and under
In most cases, the law defines the drug-free zone as any location within 1,000 feet of a building belonging to any of the above facilities. (For swimming pools and arcades, the zone is limited to just 300 feet.) If you are arrested for drug possession within a drug-free zone, the prosecution can charge you at one level beyond the normal offense level.
In other words, if you would normally be charged with a Class B misdemeanor, you may face conviction on Class A misdemeanor charges if the prosecution can prove beyond a reasonable doubt you possessed illegal drugs within a drug-free zone at the time of your arrest. There is an exception to the drug-free zone enhancement, however, if you can prove the offense was committed “inside a private residence” and no minors were present in the residence at the time.
Drug Possession vs Drug Distribution
First-time drug possession is often a misdemeanor charge, especially if the accused has no prior record and there is no evidence to suggest the person was part of a larger scheme to manufacture or distribute controlled substances. Unfortunately, some defendants do find themselves charged with “intent to distribute,” a far more serious charge than simple possession, even though they never had any such intentions.
What defines the line between possession and distribution? There are a number of factors in play. For instance, if the quantity of drugs recovered was particularly large–more than one person could reasonably consume for personal use–that alone can be enough to justify a distribution charge. Similarly, if the arresting officer finds a large amount of cash–even if it is not drug-related–that can lead to the assumption the suspect is engaged in some form of drug distribution.
This is one area where working with an experienced Galveston criminal defense attorney can make an enormous difference. It is not uncommon for prosecutors to aggressively pursue distribution charges in what should be simple possession cases. A qualified lawyer can help you negotiate such inflated charges down to something more reasonable, if not get the case dismissed outright.
How Can You Fight a Drug Possession Charge?
Although drug possession cases are somewhat routine, there are still a number of areas where the police or the prosecution fail to do their jobs properly. When such mistakes occur, it can make the difference between having a criminal conviction on your record and obtaining a dismissal or acquittal. Some of the more common defenses we employ on behalf of clients include:
Challenging unlawful searches and seizures – Normally, police cannot search your home or car for illegal drugs without first obtaining a warrant; any evidence recovered from an illegal search is inadmissible in court.
Miranda violations – An officer must advise you of your right to remain silent and to have the assistance of a criminal defense attorney before questioning you; failure to give such warnings can render any statements you make to the police inadmissible in court.
Missing or incomplete evidence – Drug possession typically requires physical evidence in the form of, well, drugs; if that evidence goes missing before trial, or has not been properly tested to determine it was in fact an illegal drug, then the prosecution cannot sustain its burden of proof.
Failure to establish possession – If illegal drugs are found near you but not on your person, the prosecution must prove you still had “constructive possession,” i.e. that you had actual knowledge that drugs were present and that you “exercised dominion and control” over their location. This can be difficult to show, especially if the drugs were found in a shared space such as a multi-tenant or multi-family home.
Of course, every drug possession case is unique and the available defenses will vary based on the known facts. This is why it is critical to hire a Galveston drug possession lawyer as soon as possible after your arrest. If you need legal counsel, contact us today to schedule a free consultation.
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Mark Diaz & Associates is a Criminal Defense Law Firm Located in Galveston, Texas representing clients throughout Galveston, Chambers and Harris Counties including but not limited to Tiki Island, Jamaica Beach, Texas City, League City, Alvin, Algoa, Santa Fe, Hitchcock, La Marque, Bayou Vista, Bacliff, San Leon, Dickinson, Kemah, Bolivar Peninsula, Clear Lake Shores and Friendswood. Contact our office today for a consultation.