By: Mark Diaz
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How to Get a Drug Paraphernalia Charge Dropped in Texas
Drug Paraphernalia Charges In Texas
It is obvious that someone will face criminal charges for certain activities in connection with controlled substances, but you might be surprised to learn how Texas drug laws apply to the tools people use to engage in illegal misconduct. The Texas Controlled Substances Act criminalizes the possession or delivery of drug paraphernalia, and the statute is extremely broad to cover numerous acts. You could be arrested for a drug paraphernalia charge if you use an object to:
- Plant, grow, cultivate, or harvest vegetation that constitutes a controlled substance.
- Manufacture, produce, package, or repack contraband.
- Compound or process materials to create an illegal drug.
- Inhale, consume, or ingest controlled substances.
- Engage in any application related to unlawful drug crimes.
In other words, almost any item under the sun can lead to a drug paraphernalia charge in Texas. Fortunately, the same laws that establish criminal conduct create a heavy burden for the prosecutor to secure a conviction.
There are also defenses listed in the statute, as well as many other strategies for fighting the allegations. A Houston drug crime defense lawyer can explain details on how to get a drug paraphernalia charge dropped in Texas, but some background may be useful.
Elements the Prosecution Must Prove In A Texas Paraphernalia Case
As with any criminal case, the government is required to prove guilt beyond a reasonable doubt with respect to every essential element of the offense. There are three separate drug paraphernalia crimes defined by the Texas Penal Code:
- Possession. It is a crime to intentionally or knowingly possess drug paraphernalia for the purpose of consuming an illicit controlled substance.
- Sale or Distribution. You could be charged with a higher degree criminal offense if you intend to sell or distribute drug paraphernalia if the purpose of said drug paraphernalia is to make/sell/consume an illicit controlled substance.
- Sale to Minor. If you are accused of selling drug paraphernalia to a minor (person under 18 years old), then you could be facing a felony charge.
The statutory language reveals a few key points that are central to the prosecution’s burden when presenting its case-in-chief, i.e., introducing exhibits and witness testimony. You might have opportunities to get a drug paraphernalia charge dropped at this first stage of the trial by exposing weaknesses in the evidence. For example:
- Intentional and knowing are terms that relate to your state of mind. The prosecutor must have proof that you acted with this specific intent, and it can be challenging to convince the jury what you were thinking.
- The state must bring forward evidence to prove the object(s) is actually drug paraphernalia, under the legal definition as defined above.
- Possessing drug paraphernalia is only illegal if it was in your possession for the purpose of making, selling, or consuming an illicit controlled substance. Therefore, an effective defense in these cases is to cast doubt on whether the purpose of the drug paraphernalia related to illegal drugs.
Defense Options in Texas Drug Paraphernalia Cases
Your drug crime defense lawyer will mount a defense to the prosecutor’s case-in-chief, but you should be aware that you have opportunities for fighting the charges even before trial. During pretrial stages, a couple of tactics for defending drug paraphernalia allegations include:
- If you were subjected to unlawful search and seizure by law enforcement in violation of your Fourth Amendment rights, any evidence turned up by misconduct must be thrown out. Without this essential proof, the prosecutor may not be able to prove the elements of the crime.
- The Fifth Amendment protects your right against self-incrimination, so you cannot be forced to answer questions or provide statements to the police. If officers do not inform you of this right through the familiar Miranda warnings after you are officially in custody, then any incriminating statements would likely be inadmissible in court.
If the charges are not dismissed beforehand, your case will move to trial. In criminal law, the State will always go first in a criminal case. Once the prosecution rests and concludes its case-in-chief, you have the opportunity to present your own defenses, if any.
In addition, you may be able to develop a defense strategy around actual versus constructive possession of drug paraphernalia. Whereas actual possession means having the item on your person, constructive possession refers to maintaining control over the object or having knowledge of the object and it being within your control.
Penalties For A Drug Paraphernalia Conviction
The separate offenses under Texas’ drug paraphernalia statute may lead to misdemeanor or felony charges depending on the circumstances, and each offense includes different sanctions if you are convicted.
- Possession of drug paraphernalia is a Class C Misdemeanor punishable by a maximum fine of $500. Though there is no jail time, you should be aware that a conviction counts against you as having a prior criminal history in future cases. It also matters for a future case involving charges related to other drug paraphernalia laws.
- Selling or distributing drug paraphernalia to another person is a Class A Misdemeanor. The punishment range for this is a maximum of one-year incarceration, a fine up to $4,000, or both. If you have a prior conviction for this offense, the penalties become more severe and that includes the jail time requirement, as well.
- The sale of drug paraphernalia to a minor is a State-Jail Felony. The minimum sentence is 180 days’ incarceration and a max of 2 years. You may also be forced to pay a maximum fine of $10,000.
There is also the ability for your Drug Crime Defense Attorney to seek a favorable plea deal on your behalf with the State. Doing so could result in charges being reduced and the penalty for the crime charged being reduced, too.
What to Look for in a Drug Crime Defense Attorney
From the above information on violations of controlled substances laws, defenses, and other strategies, you can see that retaining legal counsel is critical. There are ways to get drug paraphernalia charges dismissed at every stage of the criminal process, including arraignment, pretrial, and trial. While every case is different and there is no way to guarantee a dismissal will most certainly happen in your case, having a lawyer who knows what they are doing every step of the way in the process is critical and maximizes your ability to get the charges dropped or reduced.
Therefore, it is worthwhile to work with the best Galveston County drug crime defense lawyer that suits your needs. Knowing that someone graduated from law school and is a member of the State Bar of Texas is just the beginning. You will gain peace of mind when you know that your attorney:
- Is familiar with the county in which your case falls. Or, in other words, the attorney needs to know how the court system works and how the specific court you are in operates in order to be most successful in defending your case.
- Focuses on criminal cases, as opposed to maintaining a general practice that encompasses numerous practice areas.
- Has extensive experience advocating on behalf of individuals arrested for drug crimes, with specific attention to those involving drug paraphernalia cases.
- Will be on hand for your arraignment to address the bond and ensure you are not in custody pending trial.
- Can explain the strengths and weaknesses of your case.
- Regularly advises you on the proceedings and how they impact strategy.
- Consults with you when your input is necessary for decision-making.
As a practical matter, it is also important that you receive assurance that your lawyer will be your go-to point person throughout your case when it comes to legal matters on your case. Though you might talk to a paralegal or other staff, you most certainly should have open access to your lawyer during the process.
Discuss Strategies with a Houston Drug Crime Defense Lawyer
Texas law may be extremely broad on what constitutes illegal misconduct, but your situation is not so grim when you have skilled legal counsel to help you fight drug paraphernalia charges. With strategies to contest the prosecution’s allegations and present possible defenses, it is possible to obtain a favorable outcome.
To learn how Criminal Defense Attorney Mark Diaz assists clients throughout Galveston County and Greater Houston, please call (409) 515-6170. You can schedule a free consultation for details on how retaining a Texas drug crimes defense lawyer gives you an edge.
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.