Drug cases are often more complex than they appear and can sometimes hinge on various other areas of the law, including search and seizure issues. If you have been arrested anywhere in the DFW area on drug charges, it is important that you speak as soon as possible with a qualified attorney regarding your case.
I practice criminal defense for the following areas of drug law:
- Possession of a Controlled Substance
- Possession of Drug Paraphernalia
- Possession of Marijuana
- Possession with Intent to Sell or Distribute
- Drug Trafficking/Delivery/Importation
- Drug Manufacturing
- Prescription Drug Charges
- Prescription Fraud
- Federal Drug Charges
Dangerous Drugs and Controlled Substances
Texas law differentiates between possession of a “dangerous drug” and possession of a “controlled substance.” A dangerous drug is defined as any drug that is unsafe for self-medication AND that is not included in Schedules I through V or Penalty Groups 1 through 4 as listed in the Texas Controlled Substances Act. Dangerous drugs include, but are not limited to, the following substances:
- Pseudoephedrine, in OTC medications like Claritin D
- Dextromethorphan, a common ingredient in over-the-counter cold medicines
On the other hand, controlled substances are drugs that are included in Schedules I through V or Penalty Groups 1 through 4 as listed in the Texas Controlled Substances Act. The term controlled substance includes the drug and any dilutant or adulterant. The use and distribution of these drugs is highly regulated because of the heightened abuse potential. Some examples of controlled substances are:
- Schedule I (Heavily Controlled, No Medical Use)
- Tetrahydrocannabinols (THC) – Cannabis, Marijuana, “pot”, “weed”, “ganja”, “bud”, “chronic”
- Diacetylmorphine – Heroin
- Methylenedioxymethamphetamine (MDMA) – Ecstasy
- Psilocybin – Mushrooms
- Lysergic acid diethylamide – LSD, “acid”
- Mescaline – Peyote, San Pedro, Achuma, Peruvian Torch cacti
- Schedule II (Heavily Controlled, Limited Medical Use)
- Benzoylmethylecgonine – Cocaine
- Methylphendiate – Ritalin, Concerta
- Oxycodone – OxyContin, Percocet, Percodan
- Pure Codeine
- Pure Hydrocodone
- Amphetamines – Methamphetamine
- Phenylcyclidine (PCP)
- Short-acting Barbiturates – Pentobarbital
- Schedule III (Moderately Controlled, Accepted Medical Use)
- Anabolic Steroids
- Codeine or Hydrocodone with an NSAID or acetaminophen – Vicodin, Lortab, Lorcet
- Schedule IV (Lightly Controlled, Limited Dependency Risk)
- Benzodiazepines – alprazolam (Xanax), diazepam (Valium)
- Dextropropoxyphene – Darvon, Darvocet
- Schedule V (Very Light Control)
- Cough suppressants with codeine
- Some anti-diarrheal treatments
Under Texas law, the word “possession” has a very special meaning, and it can differ from the general understanding of the word. In order to be found guilty of possession of a drug, an individual must intentionally and knowingly possess the drug.
Intentionally possessing means that it is the conscious objective of the individual to engage in the conduct or cause the result. Knowingly possessing means the individual is aware of the nature of the possession and the circumstances that exist.
The actual term possession means actual care, custody, control or management. This means that the drug would physically be on your person or among your possessions. This could include drugs in the glove compartment of your vehicle, in your pocket or purse, or in some other way located on your person. You may also be deemed to possess a drug even if it is not on your person, but only under special circumstances. The prosecution would have to show that you:
- Knew of the presence of the drugs, and
- Knew that the drugs present were illegal, and
- Had some kind of control over the drugs
Defenses to Possession
The element of possession is extremely important in many drug cases. Possession is defined in Texas as having actual care, custody, control or management of the drug. The primary defense to the charge of possession is that the drug was received directly from or with the valid prescription of a practitioner operating in the course of their professional practice. This can include receipt from or under a prescription from a physician, dentist, nurse practitioner, psychiatrist, or podiatrist.
On the other hand, the drugs do not have to “belong to you” or have been “purchased by you” or even “for your use” to be charged with or convicted with possession. Where the drugs in your purse or in your home or in a car you were driving? That can be enough to be convicted of possession.
The charges relating to prescription drugs are far-ranging and far-reaching. They can include charges as simple as failing to maintain records, to forging or altering a prescription, to refilling a prescription without authorization, to unlawful manufacture with intent to deliver a simulated controlled substance. In cases relating to prescription medication, it is not always the individual who possess the illegally obtained substance who is punished. Other accused individuals can include physicians, nurses, pharmacists, and other healthcare providers who face not only criminal charges, but possible suspension or loss of licensure to practice. This is why immediate representation by an experienced drug crimes attorney is so important in prescription drug cases. You should not have to face criminal charges and possible loss of licensure alone.
Drug Charges Related to Minors
Texas state law recognizes a difference between providing drugs or drug paraphernalia to an adult (an individual 18 years of age or older) and providing drugs or paraphernalia to a minor (any individual under the age of 18). There are harsher penalties if a defendant is found guilty of these crimes than if it is just a standard distribution case. However, the law also allows for a greater number of defenses in these cases as well, including whether or not the defendant knew that the individual was a minor.
If You’ve Been Pulled Over or Arrested
A typical case begins with an individual being pulled over. The officer comes to have a suspicion about the individual in the vehicle based on something like the driver’s appearance, demeanor, or manner of speaking. The office orders the individual to step out of the vehicle. The officer then performs a search of the vehicle and finds illegal drugs. How the individual acts from the moment he or she is stopped can have a large impact on the future case.
The first thing to remember is that you have the Constitutional right to remain silent. You do not have to answer any questions by the police officer. The only information that you are required to provide is identifying information, such as your name, address, and/or driver’s license or other state identification. If the police officer continues to question you after you invoke your right to remain silent, he is actually violating your rights. However, if you elect to begin answering the officer’s questions, or begin to offer information after invoking your right to remain silent, that information can be used against you in court.
The second thing to remember is that you do not have to consent to any search by the police officer. You do not have to consent to a search of your vehicle. You do not have to consent to a search of your person. While an officer may threaten to arrest you if you do not consent, the officer actually cannot do that. Your refusal should always be respectful and clear. The thing to keep in mind is that if you do not consent to a search, it cannot be performed. If a search is not performed, then the officer may not locate additional information that may be required to make his case.
The third thing to remember is that you do not have to perform any field sobriety tests if requested. The tests that an officer may attempt to have you take could include:
- A Breathalyzer test
- Walking the line
- The HGN test
The officer may couch his request in a threat to arrest if you do not comply, or even an attempt to clear the case or let you go. If you perform any of the tests, you may again be providing the officer with additional information to possibly make an arrest, and additional information for a prosecuting attorney to make a case against you. Again, your refusal should always be respectful and clear, but always remember that you are able to refuse these tests.
Constitutional Challenges in Drug Cases
The Constitution offers many protections to individuals. Of particular note in drug cases are the Fourth Amendment guarantees against unreasonable search and seizure and the Fifth Amendment guarantee against self-incrimination.
The Fourth Amendment protects individuals against unreasonable search and seizure of their property by the government. In drug cases this is particularly important. If information is obtained by the officers on the case in any way in violation of this right, that information can be challenged. If the challenge is successful, it may be that the prosecution will no longer have enough information to prosecute the case, which may result in the case being dismissed.
The Fifth Amendment provides protection for individuals against self-incrimination. A suspect cannot be forced to incriminate himself under any circumstances. If it can be determined that information was obtained from a suspect in violation of this right, the information could be thrown out by the court. If it is crucial information, it may be that the prosecution no longer can prove its case, and the case could be dismissed.
Federal Drug Charges
The involvement of the federal government in a drug case automatically adds an additional layer of complications to the case. Federal drug charges often result from one of the following:
- The crime involves the crossing of state or national borders; or
- The crime involves a criminal enterprise, like a gang or other organized crime; or
- The prosecutor has decided to prosecute the crime in the federal court.
Federal drug charges result in the case being tried in federal court, where the court operates under the federal sentencing guidelines. The federal sentencing guidelines were mandatory for a long period of time, and while judges may now use their own judgment for sentencing, most do not. The federal sentencing guidelines contain minimum and maximum sentences for the various criminal charges, and many are more severe than state charges. (I refer all federal drug charges to one of 2 qualified attorneys. I can be hired on as a consultant if you are more comfortable with my involvement.)
Possible Drug Crime Penalties
Under the Texas Controlled Substances Act, the potential penalty for possession or distribution of a controlled substance depends on which Penalty Group the drug is in, how much of the drug is possessed, the presence of a minor, and a number of other factors.
Below is the standard penalty progression for possession of a Penalty Group I substance, which includes cocaine, heroin, and methamphetamines.
State jail felony
Sentence: 180 days–2 years in state jail
Fine: Up to $10,000
Sentence: 2–10 years in state prison
Fine: Up to $10,000
Sentence: 2–20 years in state prison
Fine: Up to $10,000
Sentence: 5–99 years in state prison
Fine: Up to $10,000
Enhanced first-degree felony
Sentence: 10–99 years in state prison
Fine: Up to $100,000