Drug Charges: What you should know

Posted By Tim Powers || 28-Nov-2012

General Information for our Clients:

Drug offenses under the Texas Penal Code or the Health and Safety Code have have taken on significant importance in our area in the recent past. The tactics one must use to defend the innocent person charged with a drug offense continually change. Initially one has to determine with what the defendant is charged through the prism of legal definitions.

The criminal defendant should know that possession is defined in two separate places in the criminal laws of Texas.

Possession is defined as "actual care, custody, management or control." Additionally, possession under the law must be a voluntary act. Under the law possession is voluntary when the defendant "is aware of the thing possessed for a sufficient amount of time in order to terminate its possession." With regard to Marijuana, possession must consist of a "usable quantity" — resin in a pipe would not be enough (but may be possession of drug paraphernalia). Possession of controlled substances other then marijuana (e.g. cocaine, meth, extascy, lsd) is based on weight of the alleged substance or number of "abuse units". The controlled substance weight includes any dilutants and adulterants.

The State can’t always prove the voluntariness (or lack thereof) of a possession offense or the affirmative link between the illegal substance and the defendant. Under Texas law mere presence is not enough.

Why You Need an Attorney:

Possession charges must be dealt with aggressively because a conviction could mean a driver’s license suspension and/or could have a disastrous effect on future educational and employment opportunities.

Such a conviction could bar one from holding certain jobs (teacher, peace officer). Additionally, non-US Citizens (including permanent residents) are subject to deportation or removal proceedings even if the non-citizen receives a deferred adjudication in a felony drug case.

There is a multitude of evidence which must be explored in each drug case – including, but not limited to the independent evaluation of lab reports, the quantity of any alleged controlled substance, a plethora of search and seizure issues, existence of 911 tapes, witness statements, defenses that may be available , and the admissibility of hearsay statements made at the scene by either the defendant or a confidential informant (a/k/a "snitch"). Evidence can be destroyed or lost over time if not properly requested.

Whether you select us to represent you or some other law firm, make sure you have an attorney represent you.

Punishment Maximums set by the Legislature
(if the State has enough evidence to convict) are as follows:

Possession of Controlled Substance
(Penalty Groups 1 and 2 (e.g. Cocaine, Methamphedimine, Heroin — Illegal / Prohibited Substances))
Amount of Controlled Substance Alleged Offense Grade Maximum Punishment Range
less than one gram State Jail Felony a mimimum punishment of 180 days and a maximum punishment of 2 years in a state jail facility and and optional fine not to exceed $10,000.00
one gram or more but less than four grams 3rd Degree Felony a minimum of two years and a maximum of ten years in the Texas Department of Criminal Justice and an optional fine not to exceed $10,000.00
four grams or more but less than 200 grams 2nd Degree Felony a minimum of two years and a maximum of 20 years in the Texas Department of Criminal Justice and an optional fine not to exceed $10,000.00
more than 200 grams 1st Degree Felony a minimum of five years and a maximum of 99 years or life in the Texas Department of Criminal Justice and an optional fine not to exceed $10,000.00
Marijuana Possession
Usable Quantity of Marijuana Alleged Offense Grade Maximum Punishment Range
less than two ounces Class B Misdemeanor up to 180 days in the County Jail and/or a fine of $2000.00
two ounces or greater up to but less than four ounces Class A Misdemeanor up to one year in the County Jail and / or a fine of up to $4000.00
four ounces or greater but less than five pounds State Jail Felony a minimum punishment of 180 days and a maximum of 2 years in a State Jail Facility and an optional fine not to exceed $10000.00

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