Meth, Heroin, Crack & Pot

What is a drug offense?

Generally, drug offenses involve possession, sale, distribution, trafficking or manufacturing of marijuana or a controlled substance. This also applies to prescription drugs when you don't have a valid prescription for them.

What is considered drug possession?

Having drugs on your person-such as in your hand, in your pocket or in a bag or container you are carrying - is the easiest description of "possession." However, a person can also be charged for more indirect forms of possession, such as when the drugs are in a place that the offender has direct control over, such as his or her home, vehicle, personal work space, etc. There are many defenses that can be used against possession, including the fact that multiple people may have had access to the place where the drugs were discovered.

Can the police search my car?

During a traffic stop police need probable cause to legally search your vehicle. Probable cause means the officer must have some facts or evidence to believe you're involved in criminal activity. Probable cause is the legal standard by which a police officer has the right to make an arrest, conduct a personal or property search, or obtain a warrant for arrest.

The Fourth Amendment's protection against unreasonable searches and seizures generally prohibits arbitrary searches by the police. Law enforcement officers are, therefore, required to have your consent, a search warrant, or a legally recognized exception to the warrant requirement in order to search your property for drugs or other contraband.

In the absence of a valid search warrant, you have the right to refuse an officer's request to search your property. If the officer conducts a search without your permission, a warrant, or a valid exception, any evidence seized may be suppressed as the result of an unlawful search and seizure. Such a violation of your Constitutional rights can potentially result in your charges being dropped. There are, of course, some exceptions to the search warrant rule. For example, if you have drugs in plain view (such as sitting on the back seat of your car), the officer has a right to seize the drugs as evidence.

Can I lose my driver's license if I'm convicted of possession of a controlled substance?

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Yes. Any conviction for a drug crime under the Texas Controlled Substances Act can lead to driver's license suspension for up to six months. This includes a conviction for the possession of marijuana.

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Is marijuana legal in Texas?

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Possession of marijuana is not legal in Texas. Penalties vary according to the amount possessed, with increased penalties for offenses in a drug free school zone. (Texas Stat. and Code Ann. § 481.121.)

• Two ounces or less. Penalties include a fine of up to $2,000, up to 180 days in jail, or both.

• More than two ounces, but less than four ounces. Penalties include a fine of up to $4,000, up to one year in jail, or both.

• Four ounces or more, up to and including five pounds. Penalties include a fine of up to $10,000, between 180 days and two years in prison, or both.

• More than five pounds, up to and including 50 pounds. Penalties include a fine of up to $10,000, between two and ten years in prison, or both.

• More than 50 pounds, up to and including 2,000 pounds. Penalties include a fine of up to $10,000, between two and 20 years in prison, or both.

• More than 2,000 pounds. Penalties include a fine of up to $50,000, between five and 99 years in prison, or both.

I only had one joint; why did I get arrested?

It depends on the amount and whether it was a useable quantity. Sometimes, if there is not enough marijuana for a class B misdemeanor, an officer will write a citation for possession of drug paraphernalia.

What are the consequence for possession of controlled substances?

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It is illegal in Texas to possess controlled substances without a valid medical prescription. Penalties vary according to the type and amount of drug involved in the violation.

PENALTY GROUP 1 - Penalties vary according to the amount possessed. (Tx. Health & Safety Code Ann. § 481-115.)

• Less than one gram-a fine of up to $10,000, at least 180 days in jail (and up to two years in prison), or both.

• One gram or more, but less than four grams-a fine of up to $10,000, at least two (and up to ten) years in prison, or both.

• Four grams or more, but less than 200 grams-a fine of up to $10,000, at least two (and up to 20) years in prison, or both.

• 200 grams or more, but less than 400 grams-a fine of up to $100,000, at least five (and up to 99) years in prison, or both

• 400 grams or more-a fine of up to $100,000, at least ten (and up to 99) years in prison, or both

PENALTY GROUP 1-A - Penalty group 1-A encompasses only lysergic acid diethylamide (LSD). Penalties vary according to the number of "abuse units" (dosage units) possessed. (Tx. Health & Safety Code Ann. § 481-1151.)

• Fewer than 20 units- fine of up to $10,000, at least 180 days in jail (and up to two years in prison), or both.

• 20 or more units, but fewer than 80 units-a fine of up to $10,000, at least two (and up to ten) years in prison, or both.

• 80 or more units, but fewer than 4,000 units-a fine of up to $10,000, at least five (and up to 20) years in prison, or both.

• 4,000 or more units-a fine of up to $250,000, at least 15 (and up to 99) years in prison, or both.

PENALTY GROUP 2 - Penalties vary according to the amount possessed. (Tx. Health & Safety Code Ann. § 481-116.)

• Less than one gram-a fine of up to $10,000, at least 180 days in jail (and up to two years in prison), or both.

• One gram or more, but less than four grams-a fine of up to $10,000, at least two (and up to ten) years in prison, or both.

• Four grams or more, but less than 400 grams-a fine of up to $10,000, at least two (and up to 20) years in prison, or both.

• 400 grams or more-a fine of up to $50,000, at least five (and up to 99) years in prison, or both.

PENALTY GROUP 3 - Penalties vary according to the amount possessed. (Tx. Health & SafetyCode Ann. § 481-117.)

• Less than 28 grams- a fine of up to $4,000, up to one year in jail, or both.

• 28 grams or more, but less than 200 grams- a fine of up to $10,000, at least two (and up to ten) years in prison, or both.

• 200 grams or more, but less than 400 grams- a fine of up to $10,000, at least two (and up to 20) years in prison, or both.

• 400 grams or more-a fine of up to $50,000, at least five (and up to 99) years in prison, or both.

PENALTY GROUP 4 - Penalties vary according to the amount possessed. (Tx. Health & Safety Code Ann. § 481-118.)

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• Less than 28 grams- a fine of up to $2,000, up to 180 days in jail or both.

• 28 grams or more, but less than 200 grams- a fine of up to $10,000, at least two (and up to ten) years in prison, or both.

• 200 grams or more, but less than 400 grams- a fine of up to $10,000, at least two (and up to 20) years in prison, or both.

• 400 grams or more-a fine of up to $50,000, at least five (and up to 99) years in prison, or both.

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What penalty group carries the toughest punishment?

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Drugs in penalty group 1 carry the toughest punishment. If you are arrested under suspicion of possessing any substance in penalty group 1, you will be facing felony charges. The amount of legal jeopardy you are in depends on the amount of the controlled substance you are alleged to have possessed. It's no surprise that possessing larger quantities of a drug will lead to harsher penalties. The penalties for drugs in penalty group 1 are:

• Less than 1 gram - 180 days to 2 years in prison, and a maximum fine of $10,000

• More than 1 gram but less than 4 grams - 2 to 10 years in prison, and a maximum fine of $10,000

• More than 4 grams but less than 200 grams - between 2 and 20 years in prison, and a maximum fine of $10,000.

• More than 200 grams but less than 400 grams - between 5 and 99 years in prison, and a maximum fine of $100,000.

• 400 grams or more - between 10 and 99 years prison, and a maximum fine of $100,000.

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What are common defense in drug possession cases?

A conviction for possession of controlled substances carries serious penalties. There are, however, a number of valid defenses in drug possession cases that can lead to a jury ruling in your favor or aid in negotiating a plea deal for you. Some of the most common defenses include:

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• Lack of Knowledge of Possession - To be convicted, you have to knowingly be in possession of a controlled substance. For example, if you are unaware that the bag you are carrying has a controlled substance in it, you have not committed a crime.

• Exempt From Possession Law - There are several circumstances that would be a crime but for certain exemptions, such as Peyote used in the Native American Church. If one of these exemptions apply in your case, you will have a valid defense.

• Valid Prescription - Prescription drugs are a controlled substance, and possessing them unlawfully can have serious legal consequences. But these medications have intended medical uses that give doctors a reason to prescribe them. If you are arrested for possessing a prescription drug that was prescribed by your doctor, you haven't committed a crime.

• Constitutional Rights Violations - If the evidence collected against you was done in violation of your constitutional rights, you may have a valid defense in your case. If enough of the evidence against you is excluded, it's possible your attorney may have the entire case dismissed.

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How can I resolve my drug case?

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There are several different ways to resolve a drug case and each depends on the facts of your situation. Due to various circumstances some options may not be available to everyone. Here, though, are some of those options:

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• Pre-Trial Diversion (PTD) - PTD is a probation period with the DA's office during which a person is supervised for a period not to exceed 2 years. This program operates much like regular probation in that it requires fees, classes, monthly reporting, community service, etc. After successful completion of the program the case is dismissed. Additionally, after the proscribed period for the offense it can be expunged.

• Deferred Adjudication Probation - "Deferred" is a form of probation in which the judge defers a finding of guilt and places a person on probation for a period not to exceed 10 years. Upon successful completion of the probation period the judge will dismiss the proceedings against the person and discharge them from probation. Additionally, after the proscribed period for the offense, the person may apply for a non-disclosure. A non-disclosure will prevent the public from viewing this offense.

• Straight Probation - Also called "Regular" probation. In this situation, a person is found guilty, convicted, and sentenced to a term in jail/prison, which is then "probated" for a specified period of time resulting in the person being placed on probation in lieu of confinement. This results in a final conviction that will stay on your record for the rest of your life.

• Jail/Prison time - A person will have the option of choosing jail/prison time instead of a probation period. Additionally, there are instances where an individual is not eligible for probation or probation is not offered by the District Attorneys office. If a person accepts jail/prison time, the person will be found guilty, convicted, and sentenced to the agreed upon term resulting in a conviction that will stay on their record for the rest of their lives.

• Trial - A person ALWAYS has the option of taking their case to trial. An individual is constitutionally entitled to a jury trial if they should so choose. At a jury trial the individual will have the opportunity to confront and cross examine the witnesses against them, put on evidence, and most importantly require the state to meet their burden of proof. There are times when this is the best option, but, since trial is always risky, this decision should be made after careful consideration of your other options and consultation with an experienced criminal defense attorney.