By: Mark Diaz
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What Is Considered A Controlled Substance In Texas?
With all the legal details, statutory definitions, and evidence issues involved with drug crimes, many people tend to overlook one basic component of the criminal case: Exactly what is considered a controlled substance in Texas. The point is a very important one, since state laws on possession, manufacturing, and trafficking all center on the type of drug involved with the associated misconduct. Together, these crimes are termed “Drug Abuse” in the annual Texas Arrest Data report prepared by the Texas Department of Public Safety (DPS), which indicates:
- Officials arrest almost 140,000 every year for drug abuse offenses
- The majority of charges involve possession, at close to 123,000 annually
- More than half of all drug possession arrests in Texas are for marijuana, at 55 percent
- Almost 17,000 individuals are arrested for manufacturing such controlled substances as cocaine, heroin, and narcotics.
Still, these numbers only represent arrests made based upon probable cause. The prosecutor in any criminal case must establish guilt beyond a reasonable doubt, which is a much higher standard. Specifically in a case involving violations of controlled substances laws, one of the major elements the prosecution must prove is the type of drug and amount. As a result, your strategy in fighting the charges could also revolve around the concept.
Though you should always trust your Galveston drug crime attorneys to handle necessary legal tasks for your defense, some general information may help you understand what is considered a controlled substance in Texas.
The Starting Off Point is Drug Penalty Groups
The current system of classifying drugs has been in place since the enactment of the Controlled Substances Act in 1970, which created categories based upon the potential for abuse and whether the drug had an accepted medical use. The Texas Controlled Substances Act generally mirrors the federal statute, establishing a system of Penalty Groups 1 through 4 and a special class for marijuana.
- Schedule I: Considered high risk and not usable for medical purposes, drugs in this category include heroin, cocaine, and LSD.
- Schedule II: There is still a potential for abuse, but these controlled substances are in use by the medical profession. Morphine and methadone are examples.
- Schedule III: These drugs are moderate in terms of dependence and are legal if when properly prescribed, but there are significant restrictions on prescriptions. For instance, though steroids are suitable for serious respiratory issues, they could be misused by athletes.
- Schedule IV: The potential for abuse is low in this category, and there are limited barriers to obtaining a legal prescription for such drugs as Xanax and Ambien.
- Schedule V: There is a low risk of dependence, but controlled substances in this class still require a prescription.
Any drug appearing on these Schedules is considered a controlled substance, but classification is just the first inquiry. Additional issues that impact Texas drug crimes cases are the amount, your activities with respect to the substance, and attendant circumstances.
Possession of Controlled Substances
To obtain a conviction for drug possession, a prosecutor must prove that you knowingly had control over a controlled substance in violation of Texas law. Note that:
- The prosecutor’s burden is guilt beyond a reasonable doubt, as it is in all criminal cases
- By including the term “knowing,” the statute establishes that intent is an essential element of the crime
- Possession does not merely mean having a drug on your person or in a pocket. You could be charged with constructive possession whenever the controlled substance is under your control
A conviction for drug possession is a Class A Misdemeanor for smaller amounts of less serious controlled substances, punishable by one-year incarceration, a maximum $4,000 fine, or both. However, drug possession could be charged as a felony, which considerably increases the penalties for a conviction.
Texas Drug Manufacturing Laws
The prosecution must prove, beyond a reasonable doubt, that the defendant engaged in manufacturing and related activities with the intent to deliver a controlled substance. Some important factors include:
- Manufacturing encompasses a broad swath of activities associated with controlled substances, including preparation, packaging, converting, mixing, combining, cultivating, producing, or cooking.
- You could also face charges for having certain compounds in your possession, though you have not yet combined them if the circumstances indicate an intent to manufacture.
Depending on where the drug falls within the Texas Penalty Group system, manufacturing a controlled substance could be a State Jail Felony. For a conviction, a judge could sentence you to 180 days to two years imprisonment, plus a maximum fine of $10,000. However, drug manufacturing could be a more serious felony with longer terms of incarceration as described below.
Trafficking in Controlled Substances
Also familiarly known as illegal distribution, drug trafficking charges may apply if you knowingly deliver controlled substances in the Penalty Groups. However, you could also be arrested when the surrounding circumstances indicate an intent to distribute drugs, even if there is no transaction. The amount of the controlled substance is one factor that can take a case from drug possession to trafficking; other evidence that points toward distribution might be large amounts of cash or drug paraphernalia.
Drug trafficking under certain amounts may be charged as a State Jail Felony with the penalties mentioned above, but the punishment for higher quantities could be:
- At least 2 and up to 10 years in prison, plus a $10,000 fine for a Third Degree Felony
- Anywhere from 2 to 20 years for a Second Degree Felony
- At least 5 and potentially up to 99 years for First Degree Felony drug trafficking
Special Considerations Regarding Marijuana
One of the biggest differences between Texas and federal law is the treatment of marijuana, which appears on Schedule I under the U.S. statute. State law separates marijuana from the four Penalty Groups, but it is still considered a controlled substance in Texas. Recreational pot is not legal, and medical marijuana is only available under extreme circumstances. Therefore, possession of any amount is a criminal offense as follows:
- Less than two ounces, a Class B Misdemeanor punishable by at least 180 days and up to 2 years incarceration
- It is a Class A Misdemeanor to possess 2 to 4 ounces
- Up to five pounds is a State Jail Felony
- Third and Second Felony charges apply to 5-50 and 50-2,000 pounds respectively
- More than 2,000 points is a First Degree Felony
Selling marijuana is also a crime, but the threshold amounts are much lower because the offense is viewed as being more serious than possession. Selling .25 ounce or less is a Class A or B Misdemeanor, depending on whether there was remuneration.
Impact of Aggravating Circumstances
You should keep in mind that penalties for controlled substance possession, manufacturing, or trafficking can be more extreme in certain cases. For instance, the offense is elevated one degree if your conduct takes place in a drug-free zone, such as a school, daycare facility, playground, or other spaces designated by law. In addition, punishment for a conviction may also be more severe when the defendant:
- Has a prior criminal history
- Engaged in additional illegal conduct
- Was in possession of a weapon
How Galveston Drug Crime Attorneys Can Help
This information about Texas drug laws may seem overwhelming, but it is important to understand that there are strategies for fighting the charges. If police violated your civil rights, such as by conducting an unlawful search and seizure in violation of the Fourth Amendment, you may get the charges dismissed during the pretrial phases of the case. Plus:
- Considering the high burden for the prosecutor, you could get an acquittal by exposing weaknesses in the evidence or testimony.
- A drug crime lawyer in Galveston can advise you on affirmative defenses, such as lack of intent, no knowledge of the nature of the drug, or having a valid prescription for the controlled substance.
- You may qualify for a diversion program for marijuana possession if you are a first-time offender, a type of probation where you go through rehab instead of going to jail.
- It may be possible to work out a plea bargain for reduced charges or a lower sentence.
Set Up a Consultation with Our Skilled Galveston Drug Crime Attorneys
This description of what constitutes a controlled substance may be useful for understanding the basics, but an overview cannot replace the benefits of retaining experienced legal counsel to assist with your case. You can see that the nature of the drugs will determine whether you face felony or misdemeanor charges. The penalties for either are severe, and your sentence for a conviction will depend in large part on the type of controlled substance. You can rely on your lawyer to use the details and potential defenses to your advantage.
If you were arrested on drug possession, manufacturing, or trafficking charges, please contact Mark Diaz, Criminal Defense Attorney, to discuss your case. You can call (409) 515-6170 to schedule your free appointment with one of our drug crime lawyers in Galveston. After we review your circumstances, we can determine a strategy for obtaining a favorable outcome.
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.