Have you been charged with sales or drug possession in Houston?
Drugs in Texas are classified by schedules under the Controlled Substances Act (Chapter 481 of the Health and Safety Code) by schedules. These schedules are known in our state as “Penalty Groups.” The penalty and the potential sentence will depend not only on the particular conduct (possession, sale, etc.), but also on the drug involved and other issues, including which Penalty Group the drug is listed under.
At the Law Office of Nathaniel Pitoniak, we understand that the drug laws are complex. As a former chief prosecutor, Mr. Pitoniak knows how the state attempts to develop charges, and how to spot weaknesses in the prosecution’s case. He also understands the various defenses that may be available which could result in a dismissal, a reduction in the charges, or a not guilty verdict should the case go to trial. Call our office today at (832) 315-6283 to better understand the allegations against you and the seriousness of the charges, and to find out how our office can help.
Drug Schedules in Texas
Drugs are classified by the state’s view of their potential use for medical purposes, addictive capacity and other factors. The penalty groups are:
- Penalty Group I – Heroin, methamphetamine, ketamine (“Special K”), certain opiates, hydrocodone, oxycodone, opium, morphine, codeine, cocaine, methadone, and others.
- Penalty Group I-A –MDMA (Ecstasy, Molly), LSD, and others.
- Penalty Group 2 –PCP, bath salts, and various stimulants and hallucinogens (such as mescaline).
- Penalty Group 3 – Alprazolam (Xanax), clonazepam (Klonopin), lorazepam (Ativan), diazepam (Valium), Tramadol, phenobarbital, peyote, anabolic steroids, and others.
- Penalty Group 4 – Compounds containing limited quantities of certain narcotics.
- Marijuana (Marihuana) – Marijuana is treated separately from other drugs under Texas law. In general possession of 2 ounces or less is a Class B misdemeanor. Possession of larger amounts bear higher classifications, which can be as high as life in prison. Texas is not among the majority of states which have either lessened the punishment for illegal marijuana possession, or in some cases decriminalized it entirely.
The penalty group will affect the level (classification) of a drug charge, but there are additional issues that can cause a drug to be classified in a different penalty group. The nature of the compound in which the drug is found, and the particular form of the drug are two of them. The identification of the correct Penalty Group becomes even more complicated because certain drugs, in different forms, may be classified under more than one group.
In any event, the classification is just one aspect of the seriousness and possible penalties you face if you are convicted of a drug crime.
The Penalty Group which applies in your case is one of the factors that affects the seriousness of the charge. Other issues that may play a significant role in both the level and the potential sentence if you are convicted include:
- The drug you are alleged to have possession or otherwise dealt with.
- The amount of the drug.
- The form of the drug.
- The particular conduct alleged, i.e., simple possession, manufacture, cultivation, delivery, possession with intent to deliver, trafficking, etc.
- Whether you are allegedly in possession of drug paraphernalia (a separate offense).
There are numerous additional offenses that are related to illegal drugs. It is important to understand that while the nature of the drug you are alleged to have possessed, delivered, etc., will play a role in the severity and/or number of the charges against you, there are other factors that could increase the classification or lead to an enhanced penalty.
Also note that some of the drugs listed in the Controlled Substances Act are legal if you have a valid prescription. Additional possible offenses may be charged where it is claimed that the prescription has been forged or altered (prescription fraud), or where you allegedly make misrepresentations to a physician in order to obtain a prescription for a controlled substance. Similar offenses may be charged against practitioners and dispensers (pharmacists) who commit prescription fraud, or who convert a controlled substance to their own use, or to the use of a third party.
Defenses to Drug Charges in Houston, TX
Being charged with a drug crime is serious business in Texas. But you are not guilty of anything unless the state establishes every element of the offense beyond a reasonable doubt. In addition, there are many possible defenses to drug crimes, among them:
- Illegal search and seizure. The drugs were obtained by the police illegally.
- The drugs belong to someone else. You were not in possession or control of the drugs.
- The crime lab misidentified the drug. Testing mistakes, chain of custody problems, etc.
- The drugs were planted. Someone else planted the drugs to make it look like they were in your possession or control.
- The police took action that induced you to engage in the allegedly illegal conduct.
There are just some of the issues that can be raised and that may provide a defense in your case.
Drug Crimes FAQ’s
Q: What is a drug crime in Texas?
A:
A drug crime consists of the illegal possession, sale, transfer, delivery or manufacture of (or certain other actions involving) controlled substances. Controlled substances range from marijuana, to heroin, methamphetamine, and literally hundreds of other drugs.
Q: What exactly is “possession” in terms of drug crimes.
A:
Possession is specifically defined in the Texas Controlled Substances Act (Sec. 481 of the Health and Safety Code). Section 481.002 says that possession consists of actual control, custody, care or management of the substance in question.
Q: Do I need to hire a lawyer for a simple drug possession case?
A:
Simple possession of illegal drugs could be a felony and could carry a heavy sentence. Even if the charge is a misdemeanor, a drug conviction will be part of your record, and could affect your life for years to come, including disqualifying you for many employment opportunities. Your best bet is to contact an experienced criminal defense lawyer as soon as possible.
Q: What is “possession with intent to deliver,” and how can the prosecutor prove it?
A:
Possession with intent is illegal possession of a controlled substance with the intent to sell, transfer or otherwise provide it to another person or persons. Since an essential element of the offense is the defendant’s state of mind, it must be proven, absent an admission by the defendant, by the surrounding circumstances, that is, circumstantial evidence. Intent may be inferred from the amount of drugs in a person’s possession, from possession of items such as scales and baggies, from possession of large amounts of cash, and other evidence. In some cases, the arrest and ensuring charge can be the result of a police sting, where statements and other actions can be used to try to prove that you intended to sell or transfer the drugs to others.
Q: What are “Penalty Groups,” and how will they affect my case?
A:
Drugs are classified in what are called Penalty Groups. There are five Penalty Groups (1, 1-A, 2, 3 and 4). Marijuana is classified separately. The particular drug involved in your case, and the Penalty Group to which it is assigned, will determine the classification of your charge(s), and will be one of the factors that affects the potential sentence if you are convicted.
Q: I was charged with the transfer of pseudoephedrine with intent to manufacture a controlled substance. Pseudoephedrine is contained in over-the-counter medications. How can this be a crime? Is it serious?
A:
Pseudoephedrine, while contained in certain over-the-counter medications, is a “chemical precursor.” This means that it can be used in the manufacture of other drugs. Texas law prohibits transfer of a precursor chemical that the transferor knows will be used to manufacture a controlled substance. In the case pseudoephedrine, it is a precursor used in the manufacture of methamphetamine, a Schedule 1 drug. You are probably facing a felony of the third degree.
Q: What is the penalty for possession of marijuana in Texas?
A:
The penalty for possession of pot, or marijuana, depends primarily upon the amount possessed. Classification runs from a Class B misdemeanor (possession of 2 ounces or less) to a serious felony. Penalties range, if you are convicted, from a fine to up to life in prison.
Q: Can I be arrested for possession of legal prescription drugs?
A:
Yes, under certain circumstances. If you are caught with prescription drugs which are controlled substances, and you do not have a valid prescription for those drugs, you can be charged with illegal drug possession. This includes drugs such as fentanyl, Vicodin, Klonopin, and Valium, among many others.
Q: I was charged with drug possession, but the police searched my car illegally, and found drugs. Can they use the evidence against me in court?
A:
As a general rule illegally seized evidence may not be used in court to prove the guilt of a defendant. Demonstrating that the search was illegal is the job of an experienced drug crimes lawyer. In some cases, if the evidence is thrown out, the prosecution will be left with insufficient evidence to proceed, and the case may be dismissed.
Houston Drug Crimes Lawyer
There are dozens of drug laws in Texas, covering hundreds of drugs and wide variety of allegedly illegal behavior. If you are facing a drug charge, call the Law Office of Nathaniel Pitoniak today for a consultation.
For specific answers to your questions, or for a case evaluation, contact the Law Office of Nathaniel Pitoniak today.
