By: Mark Diaz
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Is It Possible To Avoid Jail Time For First Time Offense Of Possession Of A Controlled Substance?
Even though you are in a better position with no prior drug crime convictions, the punishment for possession of a controlled substance can be harsh. In fact, you might be surprised to learn that the offense could be charged as a serious felony according to the Texas Attorney General’s publication on Penal Code Offenses by Punishment Range.
The charges vary according to the type and amount of the controlled substance in your possession, so the charges could range from a minor misdemeanor all the way to a First Degree Felony. Despite the wide range of charges, it is still possible that the judge or jury could sentence you to incarceration if convicted.
However, for a first-time offense of possession of a controlled substance, it may be possible to avoid jail time. Texas drug laws offer different options for resolving the charges, so you might qualify for lenient treatment. Though you should trust a Texas City drug possession lawyer to explain eligibility and advise you on strategies, a summary of the relevant legal concepts is useful.
Texas Drug Possession Laws
An overview of state statutes is a good start for understanding the charges you face for a first-time offense of possession of a controlled substance. Texas drug laws are complicated, but they are based upon three key factors:
- Type of Illegal Activity: Along with possession, selling, delivering, manufacturing, and trafficking in controlled substances are unlawful activities. Possession could be actual, in the sense that you had the drugs on your person; however, you could also face charges for constructive possession if the items were your bag or glove box of a vehicle you were driving.
- Type of Controlled Substance: Texas classifies drugs into penalty groups according to their accepted use in the medical field and potential for abuse. Penalty Group 1 includes substances with no medical application and a high potential for abuse, while Penalty Group 4 is on the other end of the scale. Note that marijuana falls into a category all its own, described in more detail below.
- Amount or Weight of the Drug: After consideration of where controlled substance falls into penalty groups, the question becomes how much was in your possession. Higher amounts of Penalty Group 1 drugs will lead to the most serious drug possession charges.
Penalties for First Time Offense and Subsequent Convictions
The three factors mentioned above will determine the nature of the charges, and the variables could lead to anything from a lesser misdemeanor to a serious felony. Some examples and associated punishment for a conviction are helpful:
- Possessing less than 2 ounces of marijuana is the low end of drug offenses in Texas. You face a Class B Misdemeanor punishable by up to 180 days in jail and a $2,000 fine.
- For a Class A Misdemeanor, a judge could order 12 months’ incarceration, a $4,000 fine, or both. An example is possession of fewer than 28 grams of Xanax.
- If you are arrested for possession of less than 1 gram of cocaine, the offense is a State Jail Felony. A conviction could lead to 180 days to 2 years in prison.
- It is a Third Degree Felony to be in possession of 5 to 50 pounds of psychedelic mushrooms. If convicted, the mandatory minimum sentence is 2 years’ imprisonment, though a judge could order up to 10 years.
- A Second Degree Felony is punishable by 2 to 20 years in prison, along with a maximum fine of $10,000. This would be the penalty for possessing between 4 and 200 grams of crystal meth.
- If you are convicted for possession of more than 4,000 units of LSD, First Degree Felony penalties apply. The sentencing range could be 5 to 99 years or life in prison.
Texas Drug Court as an Option for Avoiding Jail Time
If you were arrested for certain drug crimes and qualify according to state law, you may be able to take advantage of an attractive option for resolving the charges. Texas Drug Court referred to as Hope Drug Court in Galveston County, is similar in some ways to probation. A program is an intensive form of court supervision, in which someone facing drug charges can receive treatment for addiction instead of jail time. To qualify:
- You must be an adult.
- You must participate in a medical analysis that reveals you have a substance abuse disorder.
- The program is not available to those which a criminal history or those arrested for a violent crime.
If accepted into a drug court, you will be required to meet all terms set by the court. The requirements include random drug testing, participating in substance abuse treatment, and appearing for all hearings.
Drug court may be a diversion option if you were arrested, which means the charges are dropped if you complete the terms of the program. However, participating in drug court might also be part of your sentence in lieu of jail time after a conviction. Despite these attractive features, keep in mind:
- Drug court may not be suitable if you would struggle to comply with the terms established by the court.
- If you have solid defenses or evidence in your favor, it is sometimes better to fight the charges than accept drug court.
Other Defenses and Strategies for Drug Possession Charges
When you are not eligible or feel that drug court is not an appropriate solution, there are other options for fighting the charges. Always remember the prosecutor must prove, beyond a reasonable doubt, that you had a designated amount of a drug on your person or within your care, custody, or control. This is a heavy burden, so attacking weaknesses in the evidence is a solid strategy.
Another important defense in drug possession charges relates to what police must do to collect evidence: Conduct an investigation. At times, their efforts may violate your Fourth Amendment rights against unlawful search and seizure. If officers do not have probable cause or a warrant, all evidence turned up during an illegal search must be tossed out of court. Without this information, the prosecutor might not have enough to convict.
In addition, when you are a first-time offender for possession of a controlled substance, the court is more likely to consider plea bargaining as a way to resolve the charges. You could be facing lesser charges, and potentially little or no jail time.
What to Expect During the Criminal Process
Being charged with any offense is an overwhelming experience. But, understanding the stages of the criminal process may ease your mind. There are multiple steps along the way to take advantage of the defenses mentioned above.
- Arrest and Arraignment: After your arrest, the court will hold an initial hearing in which the charges are read in court. You are required to enter a plea, and the judge will address the issue of bond.
- Pretrial: Both parties may file motions related to evidence or other topics during pretrial. Plus, you are entitled to use discovery tools to gain access to the exhibits and witnesses the prosecutor intends to present at trial.
- Trial: Most cases for first-time drug possession are resolved during pretrial, but those that do not, will continue to a trial on the merits. The government goes first in presenting evidence, and your attorney will have the opportunity to cross-examine the witnesses and challenge the admissibility of the State’s evidence. Once the prosecution rests, it is your opportunity to present information regarding defenses.
Trust a Texas City Drug Possession Lawyer for Legal Help
A synopsis and timeline of a criminal case is useful, but retaining representation puts you in the best position to leverage defenses and other options for fighting the charges. Your attorney can handle such tasks as:
- Representing you during arraignment, to give you the best chance of being released on bond pending your trial date.
- Conducting an investigation to uncover evidence of your innocence.
- Presenting motions to exclude any evidence that was obtained through unlawful search and seizure.
- Consulting with you on the pros and cons of drug court.
- Assessing your eligibility for other probation or deviation programs.
- Discussing a potential plea bargain with the prosecutor.
- Appearing on your behalf for all required court hearings.
- Fighting for your rights at trial for drug possession charges.
A Texas City Drug Possession Lawyer Will Explain Potential Strategies
As you can see, it is possible to avoid jail time as a first-time offender for possession of a controlled substance. However, this information also reveals the complications of drug crimes cases. Even when there are options to sidestep incarceration, they may not always be the best fit for your situation. Plus, when a solid defense could beat drug possession charges, it is worthwhile to pursue strategies.
Skilled legal help is critical when facing charges, so please contact Galveston drug possession attorney Mark Diaz to set up a no-cost initial consultation. You can reach our Houston, TX offices by calling (409) 515-6170. After evaluating your situation, a Galveston County drug crimes defense lawyer provides personalized details about your options.