By: Mark Diaz
Share This Post
How Serious is Possession of Drug Paraphernalia in Texas?
Texas drug laws are extremely harsh when compared to other U.S. states, and this is true even when it comes to the physical devices and tangible items related to prohibited acts. The Texas Controlled Substances Act describes the offense of “Possession or Delivery of Drug Paraphernalia,” and the definitions are quite expansive.
Under certain circumstances, just about anything, you would normally find in a home, vehicle, or business could be classified as contraband. In the sense that you could face criminal charges for seemingly harmless, perfectly legal objects, possession of drug paraphernalia is most definitely a serious crime. Plus, this offense is often associated with other illegal conduct, so law enforcement officers are also likely to tack on charges for possession, trafficking, and manufacturing.
However, the expansive definition of what constitutes drug paraphernalia also leaves open a wide door for presenting defenses. There are challenges for the prosecution in proving all essential elements to get a conviction for possession of drug paraphernalia in Texas, so you must take advantage of all opportunities to obtain a favorable outcome. Your first priority should be consulting with a Galveston County drug crime lawyer, though some general information is also helpful.
Basics About Texas Drug Paraphernalia Laws
The statute prohibits two types of conduct related to the items defined as paraphernalia.
- Possession is the actual use or intent to use an item for illegal purposes.
- Delivery involves the distribution of items knowing that they will be used for illegal purposes, what you may know familiarly as trafficking in drug paraphernalia. The law also prohibits manufacturing these products under the same section.
Within these two categories of illegal acts, the focus is on what constitutes the illegal purposes to which the unlawful item could be dedicated. You could be charged with delivery or possession of drug paraphernalia in Texas if a product or device could be used to:
- Plant, cultivate, propagate, grow, or harvest controlled substances in plant form.
- Manufacture, convert, process, prepare or compound drugs.
- Test, weigh, or analyze controlled substances.
- Store, pack, contain, or conceal drugs.
- Inject, ingest, consume, or otherwise introducing controlled substances into the human body.
Another important point to note about the two types of drug paraphernalia violations is that the law requires the prosecution to prove the defendant’s state of mind. There must be evidence that the individual intentionally possessed or delivered these items knowing that they would be used for illegal purposes.
Penalties for Drug Paraphernalia Crimes in Texas
The definitions of possession and delivery of drug paraphernalia are important because they impact the nature of the criminal charges.
- Possession of drug paraphernalia is the lesser of the two offenses, as most individuals have these items for personal use. The offense is a Class C Misdemeanor, for which a judge could order a maximum fine of $500. There is no jail time for a conviction.
- Delivery or manufacturing drug paraphernalia is a Class A Misdemeanor. If convicted, you could be sentenced up to a maximum of one year of incarceration and a fine of up to $4,000.
- When delivery of drug paraphernalia involves a recipient who is under 18 years old and more than 3 years younger than the defendant, the offense is a State Jail Felony. A conviction could lead to no less than 180 days and up to 2 years in state jail, along with a fine of up to $10,000.
Mandatory minimum sentencing applies for subsequent offenses, so the jail sentence is stiffer under certain circumstances. If you were previously convicted for delivery OR delivery of drug paraphernalia to a minor, the judge must sentence you to at least 90 days’ imprisonment.
The Texas drug paraphernalia possession law includes a provision that could act as a defense to the charges, though under very limited circumstances. You could have the charges dismissed or be acquitted at trial if you were the first individual to call 9-1-1 because another person was overdosing on controlled substances and:
- You requested medical assistance in an ongoing emergency situation.
- You stayed at the scene to await first responders.
- You cooperated with medical personnel and law enforcement.
However, this defense is not available if you made the 9-1-1 call while under arrest or being served with a search warrant. You may also run into challenges with establishing this defense if you have a track record of taking advantage of it. The law contains a “lookback” period of 18 months prior to the arrest in the underlying case. If you requested medical assistance in response to a possible overdose within this timeframe, the defense is not available.
Other Defenses to Drug Paraphernalia Possession
The statutory defense is quite narrow, but there are other options for fighting the charges. Always remember that the government has the burden of proving guilt beyond a reasonable doubt, and the prosecutor must meet this burden for every element of the crime. For both drug paraphernalia crimes, the requirement of intent and knowledge is key.
- With possession of contraband items, the prosecution must have evidence that you had the item on or about your person with the intent to produce, process, or consume controlled substances.
- In a case for delivery of drug paraphernalia, the prosecutor must also prove intent – i.e., the defendant’s intent to provide contraband knowing it will be used to produce, process, or consume controlled substances.
In addition, there are numerous other defenses and strategies you can pursue with help from a Galveston County drug crime lawyer. For instance:
Many drug paraphernalia arrests stem from illegal search and seizures by police. Officers are required to have a warrant, signed by a judge and supported by probable cause, to search you, your home, and your business. If they do not have a warrant or justifiable reason to act without one, all evidence turned up by the unlawful search is not admissible in court. Without key evidence – such as the items alleged to violate drug paraphernalia laws – the prosecutor may not be able to prove guilt beyond a reasonable doubt.
With both possession and delivery of drug paraphernalia, you could base your defense on the item having a legitimate purpose. This strategy targets the intent element, so you could fight the charges on the grounds that:
- A scale was for use in the kitchen.
- You have plastic baggies for food storage.
- The lighting system in your home is for growing vegetables indoors.
Of course, this defense is not as solid when controlled substances are also found by officers, including trace amounts of drugs on the paraphernalia.
With possession of drug paraphernalia, you might defeat the charges on the basis of actual versus constructive possession. The key with possession is whether you were able to exercise control and dominion over the item. Actual possession is relatively straightforward since it usually involves a pipe, container, or related devices in a person’s pocket.
The lines are more blurred with constructive possession, so you could contest the charges by proving that you did not exercise control. For instance, if you were driving someone else’s car and drug paraphernalia was found in the trunk, you could have a solid defense. When more than one person has access to the item, the prosecutor cannot meet its burden to show that a single individual exercised control.
Tips if You Were Arrested
You can see that there are multiple defense opportunities available in drug paraphernalia cases, and you can rely on your Galveston County drug crime lawyer to take advantage of them. However, there are a few things you can do to support your attorney’s efforts.
- If served with a search warrant, review it carefully for a judge’s signature and description of the investigation police intend to conduct. Do not consent to any search beyond what the warrant states.
- If you are arrested for delivery or possession of drug paraphernalia, exercise your right to remain silent as read to you in your Miranda warnings.
- Never resist arrest or get into verbal or physical altercations with law enforcement. Doing so will not convince the police to release you, and you could face additional charges.
- Once in custody, do not provide statements to police or answer officers’ questions. Even if you are professing your innocence, your words can be used in court against you and in ways you never expected.
- Upon arrest for drug paraphernalia charges, the only time you should speak is to request to contact your criminal defense attorney.
Discuss Defenses with a Galveston County Drug Crime Lawyer
If you were arrested for any drug offense, it is critical to retain an experienced Galveston County drug crime defense attorney right away. Timing is critical in these cases, so having legal counsel is essential from the earliest stages of the criminal process.
To learn more about defenses to possession of drug paraphernalia in Texas, please contact criminal defense attorney Mark Diaz. Individuals in Greater Houston and throughout Galveston County can call 409-515-6170 to schedule a free consultation with a Texas drug crimes defense lawyer. Once we review your situation, we can explain the options for fighting the charges.
Mark Diaz & Associates is a Criminal Defense Law Firm 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.