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How Different Is The Punishment For Drug Possession vs. Drug Trafficking?

By: Mark Diaz March 19, 2021 no comments

How Different Is The Punishment For Drug Possession vs. Drug Trafficking?

Although public attitudes towards illicit drugs have softened in recent years, Texas still maintains some of the strictest anti-drug laws–and penalties–in the country. Even carrying a relatively small amount of a controlled substance may lead an overeager prosecutor to charge you with a drug trafficking offense. And these crimes are often prosecuted as felonies, meaning a conviction could land you in jail for a long time.

What Exactly Is Drug Trafficking?

Drug trafficking is actually not a specific crime. Rather, it is a term lawyers use to describe a variety of criminal offenses related to the distribution and delivery of controlled substances. Indeed, the main thing that separates drug “possession” from drug “trafficking” is that the latter involves some act of transferring drugs from one person to another.

The thing is, you do not have to be caught physically handing drugs to someone to be charged, tried, and convicted of a trafficking offense. Let’s say a police officer pulls you over on a routine traffic stop. During the stop, the officer discovers a quantity of marijuana in your car. In theory, you could be charged with possession with intent to deliver that marijuana to other persons, even if there was no proof that was what you were actually doing.

Indeed, the line between “drug possession” and “drug trafficking” is often quite fuzzy. Prosecutors will often push for drug trafficking-related charges based on the circumstances surrounding the arrest. Some common factors include:

  • The quantity of drugs involved. Basically, the more you are found with, the more likely you will face some sort of trafficking charge, as prosecutors will assume you did not acquire that amount of drugs solely for personal or “recreational” use.
  • The presence of any drug “paraphernalia.” If the police find items in your possession that are common in drug trafficking operations–such as scales or plastic baggies–that increases your chances of facing charges that are more serious than simple possession. Similarly, if the police find a large amount of cash on you, even if you have a legitimate explanation, they may take that as proof you have been selling drugs.
  • Where you were arrested. If you are driving your car away from the Mexican border and are found with cocaine in your trunk, the police are probably going to assume that you are a drug-runner and not simply a customer.
  • You are actually seen by a police officer handing drugs to another person. The context here really does not matter. You could be inside your own house and handing a single joint of marijuana to a friend. Technically, that is still considered illegal “delivery” of a controlled substance. No money has to exchange hands.

Basically, there are three broad types of drug trafficking charges you need to know about:

  1. Transporting a controlled substance from one location to another, regardless of whether you personally sell or transfer the drugs involved.
  2. Knowingly distributing a controlled substance to another person.
  3. Knowingly possessing a drug with the “intent” to distribute it at some future time.

How Drug Trafficking Is Punished

As with drug possession, drug trafficking crimes are defined by the Texas Controlled Substances Act. This is one of the most complex criminal laws on the books in Texas. The main reason for this is that there is not a one-size-fits-all drug charge. Instead, the Act divides all illegal drugs into four “penalty groups.” Each penalty group has its own sliding scale for determining the severity of a criminal charge.

Here is a complete breakdown of drug possession and drug trafficking offenses by degree:

  • Class B misdemeanor: Possession of 2 ounces or less, sale or delivery of 7 grams or less (without remuneration); punishable by 180 days in prison and/or a fine of up to $2,000.
  • Class A misdemeanor: Possession of between 2 and 4 ounces, sale or delivery of 7 grams or less (with remuneration); punishable by up to 1 year in prison and/or a fine of up to $4,000.
  • State jail felony: Possession of between 4 ounces and 5 pounds, sale or delivery of between 7 grams and 5 pounds; punishable by 180 days to 2 years in prison and/or a fine of up to $10,000.
  • Third-degree felony: Possession of between 5 and 50 pounds, punishable by 2 to 10 years in prison and/or a fine of up to $10,000.
  • Second-degree felony: Possession of between 50 and 2,000 pounds, sale or delivery of 5 and 50 pounds; punishable by 2 and 20 years in prison and/or a fine of up to $10,000.
  • First-degree felony: Possession of more than 2,000 pounds, sale or delivery of between 50 and 2,000 pounds; punishable by 5 years to life in prison and/or a fine of up to $10,000.
  • Felony delivery or sale of more than 2,000 pounds of marijuana; punishable by no less than 10 years and up to life in prison and/or a fine of up to $100,000.

Now, this is just how the laws work with respect to marijuana. As noted above, there are different penalty groups that cover different controlled substances. But the basic principles are still the same: The greater the amount you are caught with, the higher the charge you face, and those charges are likely to be more severe if the prosecutors can prove you were delivering, selling, or transporting the drugs in question.

What Are the Defenses to Drug Trafficking Charges?

As you can see, drug trafficking, even when it involves a small amount of marijuana, can lead to serious criminal charges. So how do you fight back? Every case is obviously different, but here are some common strategies we use when defending clients who are facing drug trafficking charges:

  • You did not know you were transporting illegal drugs. Prosecutors must show that you “knowingly” engaged in a criminal act. If you can show you were transporting drugs without such knowledge–maybe someone put them in your trunk without telling you–that can provide one possible defense to criminal charges.
  • The police made a mistake. Maybe the police thought you were transporting a controlled substance, but it turned out to be something else. One thing to note here: the law changed recently when it comes to marijuana cases. The detectable amount of THC must reach a certain threshold before it is classified as an illegal substance. So, if you are caught with what the police believed was marijuana, but after it was sent to be tested at a lab it comes back as having no or very low THC levels, then you cannot be prosecuted. This has become more of an issue lately with the popularity and mass production of CBD products.
  • The police made more than a mistake–they violated your constitutional rights. As we previously discussed, many drug trafficking cases start with routine traffic stops. If that stop was itself illegal–i.e., the police lacked a legal justification to pull you over–or officers conducted an improper warrantless search, any drugs seized could be deemed inadmissible in a criminal trial.
  • You were coerced or threatened into trafficking the drugs. Let’s say you only agreed to transport a controlled substance because a dealer threatened to kill your family. You can argue that you are not criminally responsible for acting under such duress.

In short, you may have a number of options to defend yourself from a drug trafficking charge. An experienced Galveston criminal defense attorney can review your case and offer you more tailored advice and representation. So, if you are facing any sort of drug possession or drug trafficking charge, contact Mark Diaz today at (409) 515-6170 to schedule a consultation.

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