By: Mark Diaz
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How You Can Be Charged For Drugs Not In Your Physical Possession?
If law enforcement conducts a legal search and finds drugs, you can be charged with possessing a controlled substance. But many people do not realize you still can be convicted of drug possession even if the drugs are not on you. This is known as ‘constructive possession’ of narcotics.
Learn about constructive possession of illegal drugs below. If you have been charged with drug possession, please contact the Texas City drug possession lawyers at Mark Diaz & Associates for assistance.
What Is Constructive Possession?
Constructive possession of illegal drugs requires Texas law enforcement to prove the following:
- You were aware that drugs were present in the place the police found them
- You had care, custody, or control over the drugs
For example, the police knock on your apartment door where you live alone and you let them in and grant them consent to search. They search the apartment and find 1/3 ounce of marijuana on the kitchen table and let’s say, you were in the living room when this happened. There is a high probability you will be charged of drug possession. Even if you were not holding the weed in your hand, it was on the table in your apartment. Under the theory of constructive possession, a jury can assume the marijuana was yours.
What happens if you share an apartment with two others? For example, say the police find marijuana in a shoe box in your roommate’s closet. In this case, you have much more to argue when it comes to whether you were in constructive possession of marijuana. The police will have a difficult time showing the drugs were in your immediate and exclusive control.
The first element is usually the most difficult for the prosecutor to prove. A good criminal defense attorney will argue that you did not know the drugs existed. They may point to your actions, statements, and conduct to suggest you were unaware of the drugs. For example, your attorney may argue that someone who entered the apartment left the drugs and you had no idea. If the facts substantiate the notion, your attorney could argue that nothing in your behavior or actions indicated you knew the drugs were there.
Fortunately, even if the prosecutor satisfies the first condition, you only can be convicted if they prove you had care, custody, or control over the drugs. So, even if you were near the drugs, it is not enough to convict you of constructive possession. The prosecutor must show that you had care, custody, or control over the drugs.
Defenses To Constructive Possession Charges
Showing the weaknesses in the prosecutor’s constructive possession case is the most effective way to beat the charge. This will depend on your attorney’s assessment of the facts of your case, such as:
- Whether the illegal drugs were in a common area, such as the family room
- Whether the drugs were in plain sight, such as on a coffee table
- Whether drug paraphernalia was present and in your possession at the time
- Who could access the place the drugs were located
- Whether you showed by action or words that you knew the drugs were there
- Whether anyone else could access where the drugs were
Depending on these details, your attorney may try one of these defenses:
- You did not know the drugs were there. For instance, you borrowed your friend’s vehicle if the drugs were under the car seat.
- The police did an illegal search. For example, the police searched your vehicle without probable cause and in violation of your constitutional rights.
- Lack of possession evidence, meaning there is insufficient evidence to show you had control over the drugs. For instance, if the police arrest everyone in the apartment when drugs are found in a bedroom. There is usually insufficient evidence to prove that everyone in a controlled area knew the drugs were there.
What Are the Penalties For Marijuana Possession In Texas?
It is essential to have a skilled drug possession lawyer defend your rights in Texas. If you are convicted of drug possession, you face many severe penalties. The severity of the punishment depends on the type and amount of drugs that were in your control.
Despite many states legalizing marijuana possession, Texas continues to have harsh punishments for possessing the drug. The penalties depend on how much marijuana is in your possession.
Section 481.120 of the Texas Health and Safety Code states that if you knowingly have control, management, care, or custody of marijuana, that is considered marijuana possession. Note that this definition takes into account constructive possession of illegal substances.
- Possession under two ounces of marijuana: Class B misdemeanor. Punishment can be up to six months in county jail and a possible fine up to $2,000. Alternatively, you also may receive up to two years of probation. Possessing two to four ounces may result in a one-year jail sentence and up to a $4,000 fine.
- Possession of more than four ounces: This is a felony. Possession of up to five pounds of marijuana may result in six months to two years in jail. Fine can be up to $10,000. Possessing five to 50 pounds may result in two to 10 years in prison and a $10,000 fine.
- Possession of 50 to 2,000 pounds: Prison sentence may be two to 20 years and a $10,000 fine. For more than 2,000 pounds of marijuana, the punishment range is five to 99 years and a $50,000 fine.
If you are convicted of selling seven grams or less of marijuana, the punishment can be 180 days in jail and a $2,000 fine. Selling seven grams to five pounds is a felony in Texas, and the term is no less than 180 days in jail and up to 2 years in jail and a $10,000 fine. In addition, selling any quantity of marijuana to someone under 18 is a felony punishable by two to 20 years in prison and a $20,000 fine.
What About Medical Marijuana?
There is no exception in Texas for possessing marijuana for medicinal purposes. However, the state does have exceptions that allow patients with specific diseases to purchase cannabis oil. This contains the same active ingredients as marijuana, but the concentration is lower.
These products can only be bought with a doctor’s prescription and through a state-authorized dispensary. You are not allowed to grow your own marijuana to use for medical purposes. You also may not buy cannabis products from a dealer not licensed by the state.
Dropping Marijuana Possession Charges
Marijuana possession charges can be dropped in certain circumstances in Texas in some jurisdictions. Different parts of the state have varying priorities in charging these crimes. In some cases, the charges can be dropped and the accused will not have a drug conviction on their record.
This may occur in a part of the state where a diversion program is offered for people arrested for carrying small amounts of illegal drugs. In Houston, for example, the prosecutor will often just give a citation for small amounts of marijuana.
Diversion programs in certain counties allow for a dismissal of charges if you successfully complete a pretrial diversion program. Diversionary programs usually require that you complete certain tasks indicating a form of rehabilitation, pay fines and court fees, and complete additional requirements. If you do these things, the charges may be dropped.
Some people arrested for drug possession in Texas do not go to jail. Instead, many jurisdictions offer court-ordered drug rehabilitation. This is alternative sentencing for those convicted for holding small amounts of marijuana and other illegal drugs. Those charged with constructive possession of marijuana often qualify.
When the following factors apply to your case, the judge may order you to rehab instead of jail:
- A prison sentence seems harsh for the nature of the drug possession crime
- This is your first offense
- You did not commit any violence
- Your crime was a result of drug addiction
The details of court-ordered rehab vary based on your drug and criminal history. For example, you could be ordered to go to residential recovery, group counseling, outpatient rehabilitation, or another option.
Some people convicted of drug possession may feel going to drug counseling is unnecessary. But if you have a drug problem, attending rehabilitation could be just what you need. You may receive mental and behavioral health treatment that helps you overcome your drug addiction. This can lead to positive life changes and sobriety. In addition, going to rehab can keep you crime-free for the rest of your life.
Talk To A Texas City Drug Possession Lawyer Now
When you are charged with constructive possession of illegal drugs, many things may flash through your mind. What happens if you are convicted? Will you be able to keep your job? Will you go to jail?
Fortunately, a skilled criminal defense attorney can help you. Mark Diaz is an experienced drug possession attorney with more than 20 years of experience fighting for Texans’ rights.
Mark Diaz & Associates represent people charged with drug possession in Galveston, Tiki Island, Jamaica Beach, League City, Texas City, Algoa, Santa Fe, Hitchcock, La Marque, Bayou Vista, Bacliff, Kemah, Clear Lake Shores, Bolivar Peninsula, Dickinson, and San Leon. Contact one of our Galveston County drug possession lawyers now at (409) 515-6170.