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HOW TO BEAT A DRUG CHARGE IN TEXAS

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How to Beat a Drug Charge in Texas

Have you been arrested for a Drug Charge in Fort Worth or the surrounding cities of Tarrant County, Texas? If you are like many of our clients, after being released from jail, you may feel overwhelmed and unsure about what to expect moving forward. We hope you find the material we created in this manual as a helpful guide to making good decisions about your drug criminal defense.

It is completely normal to feel frustrated and afraid. Afraid you will lose your job. Afraid, you will go to jail. Afraid this drug arrest will be on your record for the rest of your life. In your frustration, you may be searching for answers through Google searches hoping to get some clarity on what to do and what to expect.

We prepared “How to Beat a Drug Charge in Texas” to give you hope that with the right attorney and the right plan of attack for your drug crime defense, you can feel confident that you will be able to maintain your freedom and get your life back.

First, we need to cover some basic information about drug crimes under Texas law and then I will share a story of a former client I represented on a drug charge and how their story can guide you in your pursuit to win your Texas drug case. Let us first examine an overview of Texas drug laws:

  • Possession of Marijuana
    • Possession of Marijuana under 2 ounces
    • Possession of Marijuana 2 ounces – 4 ounces
    • Possession of Marijuana 4 ounces – 5 pounds
    • Possession of Marijuana 5 pounds – 50 pounds
    • Possession of Marijuana 50 – 2000 pounds
    • Possession of Marijuana over 2000 pounds
  • Possession of a Dangerous Drug (Misdemeanor)
  • Possession of a Controlled Substance – PG1
    • Possession of a Controlled Substances under 1 gram
    • Possession of a Controlled Substance 1 gram – 4 grams
    • Possession of a Controlled Substance 4 grams – 200 grams
    • Possession of a Controlled Substance 200 grams – 400 grams
  • Possession of a Controlled Substance – PG2
    • Possession of controlled substance under 2 ounces
    • Possession of controlled substance under 1 gram
    • Possession of controlled substance under 1 gram –Drug Free Zone
    • Possession of controlled substance under 1 gram
    • Possession of controlled substance 1 gram < 4 grams
    • Possession of controlled substance 4 <200 grams
  • Possession of controlled substance (PG3)
    • Possession of controlled substance under 28 grams
    • Possession of controlled substance 28 – 200 grams
    • Possession of controlled substance 200 – 400g
    • Possession of controlled substance over 400g
  • Possession of controlled substance (PG4)
    • Possession of controlled substance under 28 grams
    • Possession of controlled substance 28-200 grams
    • Possession of controlled substance 200 – 400g
    • Possession of controlled substance over 400g
  • Manufacturing/Delivery of a Controlled Substance

A few years ago, I received a late-night phone call from the parents of a young man who had been arrested for drug possession in Fort Worth, Texas. The parents of this young man were very upset. They could not believe that their son had been arrested for a drug charge. It was his first drug arrest, and he had a clean criminal record prior to this incident.

I came to learn that this young man had been driving his car with a few friends and had been pulled over by a Fort Worth police officer for an alleged traffic violation. After approaching the car, the officer claimed he smelled an odor of burnt marijuana and decided to do a search of the vehicle. After the search of the vehicle, drugs were located inside the vehicle and everyone inside the vehicle was arrested for possession of a controlled substance. The police officer transported this young man back to the jail and on the ride to the jail, the police officer began to ask questions about why this young man was hanging around those other boys and he should have known better.

This young man’s name was Patrick. Patrick’s parents were immediately concerned about what they could do to get their son out of jail as soon as possible. I explained to them that Patrick would be transported to the Tarrant County Corrections Center located at 100 North Lamar Street in Downtown Fort Worth for processing and arraignment. After Patrick was arraigned, a bond would be set for him and we could move forward with the process of posting Patrick’s bond and getting him out of jail.

After posting Patrick’s bond, Patrick sat down with me at my office and I began to answer his questions. Patrick was pretty traumatized by his night in the Tarrant County jail and was afraid of so many things: afraid he might go back to jail in the future, afraid he might become a convicted felon, afraid he would lose all hope of achieving his career and personal goals because of a felony drug arrest on his record. This led to his first question…

Now That I Am Facing a Drug Charge, Is My Life Over? How Serious Are My Charges?

I could tell that Patrick was visibly shaken and overwhelmed with the prospect of what he was facing. I wanted him to know that there was hope for his future if his case was handled properly. Patrick’s charge was a Possession of a Controlled Substance under 1 gram – a State Jail Felony. This charge was punishable by up to 2 years in a state jail facility and up to a $10,000 fine.

Patrick had two main concerns: (1) He did not want to go back to jail; (2) He wanted a path to get the case and the arrest off his criminal record. I assured him that I believed we could achieve both goals. Patrick jumped right into his next question

What If The Drugs Were Not Mine? If Someone Else Owned the Drugs, Does My Case Get Dismissed?

Patrick asked a great question that required a reference to the Texas Penal Code to provide the answer. I explained that possession of a controlled substance does not require proof of “ownership.” In other words, the law does not care who owned the drugs. The law requires proof beyond a reasonable doubt as to who POSSESSED the drugs. Patrick looked at me confused – what is the difference?

How Is “Possession” Proven? What Does The Government Have To Show?

I explained to Patrick that under Texas law, the State of Texas must prove beyond a reasonable doubt that Patrick exercised care, custody, or control over the drugs. More specifically, the Government must prove that Patrick “intentionally or knowingly” possessed the controlled substance.

I wanted Patrick to understand that just because drugs were in his car, does not mean the prosecutor will be able to prove that Patrick knew about them being there. In other words, mere presence in the vehicle is not sufficient to prove that Patrick had any personal knowledge that drugs were in the vehicle. When other people are in the car, it is just as likely that one of the other people had knowledge of the drugs and intentionally exercised care, custody, or control over the drugs.

The Government must affirmatively link Patrick to the drugs found in his car. Where were the drugs found? Were they in Patrick’s pocket? If not, how close were the drug found to Patrick? Did they fingerprint the baggie or container holding the drugs? Was it found in a door pocket of the car? Was it in the backseat? Underneath a seat? Center console of the vehicle? It is critical that the Government affirmatively link the location of the drugs to the person they are arresting. The farther away the drugs are from Patrick’s location in the car, the harder it will be for the prosecutor to affirmatively link him to the drugs.

Were the drugs found in a package? A purse? A backpack? Did that purse or backpack contain any personal information that identifies the possible owner? Maybe in the purse there is a photo driver’s license of someone or a checkbook or keys or other personal identification information that makes it easier for the prosecutor to link the drugs to a particular person. In other words, the lack of evidence affirmatively linking Patrick to the drugs creates substantial reasonable doubt to help us win his drug case. Patrick was encouraged by this news because in his case, there were several people in the car and the drugs were found under the passenger seat of the vehicle. This led to another question,

What If I Spoke to the Police? Will They Use My Statements Against Me To Prove “Possession?”

It truly depends upon how and when you gave statements and what you said. In other words, we must examine the rules of Miranda Rights and whether your statements are admissible in court. Patrick was afraid that some of the statements he made to the police could have been misinterpreted to appear he had knowledge of the drugs in the car and did not want these statements to be used against him.

It was very important for Patrick to understand that Miranda Rights primarily affect only confessions. Patrick interrupted me, “What do you mean by confessions?” If the police officer arrested or detained Patrick, they are trained to try to get information from him. In fact, police officers are trained to ask questions that are presented in a fashion that appear to be helpful to you or make it appear that they are on  your side and are willing to help you. Unfortunately, almost everything you say will be used against you in court if you answer police officer questions.

Patrick did admit that he spoke to the police officer and answered his questions. As a result, Miranda rights are critical in this situation. If the police officer involved in Patrick’s case did not follow the law in this situation, everything Patrick said would be thrown out in court. This was a good time to explain to Patrick the simple rules of when Miranda rights apply.

The Basic Miranda Warning required by the landmark Supreme Court Case; Miranda vs. Arizona requires the person be read the following: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney. If you cannot afford one, one will be appointed to you by the court.”

Failure to read Patrick his Miranda rights prior to asking him questions, should result in any statements given being inadmissible in court. However, there are exceptions, and police officers have learned how to navigate these exceptions.

For Miranda rights to have been read to Patrick prior to any questions being answered, the following is required:

  1. Patrick must be in custody – what do we mean when we say, “in custody?” Being “in custody” means you are not free to leave. “In custody” means Patrick must have been detained. Being placed in handcuffs and in the back seat of a police patrol car meets that definition. However, if the police officer had walked up to Patrick and had a casual conversation with him, the officer would have used every statement Patrick gave against him and claimed he was free to leave at any time. Patrick needed to understand that in the future – NEVER ANSWER QUESTIONS FROM A POLICE OFFICER WITHOUT AN ATTORNEY PRESENT!
  2. Patrick must be in the process of being interrogated by the police for Miranda to apply – In other words, if you volunteer information without being questioned, it will be admissible. The police officer must be asking you questions or interrogating you for Miranda rights to apply. If Patrick had been in the back seat of the patrol car with handcuffs on randomly talking and giving information to the officer, all these statements could be used against him.

In this instance, Patrick did answer a few questions from the police officer while he was handcuffed in the back of the patrol car. As a result, those statements will be thrown out in court and not be permitted to be used against him.

So, what happens if the police did not read Patrick his Miranda rights and he was arrested? Does it automatically mean his criminal case would be dismissed? Unfortunately, no. It only means that all oral and written statements Patrick made would be thrown out in court and this will make it harder for the Government to prove the case beyond a reasonable doubt.

Patrick interrupted me and wanted to ask a question related to how the police pulled over his car.

What If The Police Pulled My Vehicle Over For No Reason? Can I Get My Drug Case Dismissed?

Patrick brought up a great point. Under Texas law, the police must have Reasonable Suspicion to pull over a vehicle and investigate. In other words, the police are not allowed to pull you over because they had a “hunch” you were doing something illegal. How do the Police develop reasonable suspicion? They usually look for a traffic violation as a reason to pull someone over.

Patrick was adamant that he believed he was driving properly and was not committing any traffic violations at the time he was pulled over. We later reviewed the police reports and found that the police officer claimed that Patrick had failed to signal a lane change within 100 feet and had a license plate light that was not operating properly.

However, I explained to Patrick that simply because the police said they observed a traffic violation does not mean they can prove it in court. If Patrick failed to signal a lane within 100 feet, how did the office estimate 100 feet? If Patrick did, in fact, turn on his blinker to change lanes, the video could provide reasonable doubt as to whether he turned on the blinker within 100 feet.

What about the license plate light that was not operating properly? Once again, I explained to Patrick we needed to get access to the video showing exactly what the license plate light was doing. Was part of the light working? Was it working sufficiently to view the license plate within 50 feet? If so, there may not have been reasonable suspicion to pull Patrick over to investigate.

If it is determined that there was no reasonable suspicion to pull Patrick’s car over to investigate, I wanted Patrick to know that we could file a motion to suppress all evidence after the stop because it was obtained illegally. Patrick was interested in this motion to suppress and wondered if it would apply to the search of his vehicle as well. He asked,

What If the Police Had No Legal Reason to Search My Car? Can My Drug Case Be Dismissed Because of an Illegal Search?

I reminded Patrick that he was right to be asking this question. Under Texas law, a police officer must have probable cause to search a vehicle. Although it takes reasonable suspicion to pull over a vehicle, there must be a showing of probable cause that someone is committing a crime for the officer to search the vehicle. In Patrick’s situation, we needed to look over the police reports and video to determine what the police officer was claiming as the basis for probable cause to search his car.

After reviewing the reports, the officer claimed to have smelled the burnt odor of marijuana as the basis for a search of the vehicle. I wanted Patrick to understand that 33 states currently do NOT allow the odor of marijuana alone to be the basis for a search of a vehicle.

This was an issue that deserved to be litigated. Particularly with the recent change in Texas law related to marijuana. Previously, there was no requirement to show THC levels of marijuana. However, recent changes in Texas law now require THC levels to be proven to substantiate a conviction. As a result, there is a good argument that merely smelling burnt marijuana without proof of that marijuana’s THC levels does not substantiate probable cause sufficient to permit a search of the vehicle. Examples of evidence substantiating probable cause to search drugs in plain view, furtive movements attempting to conceal an item, someone throwing something out the window or quickly stuffing something into their mouth.

Patrick then wanted to know the process for testing the drugs. He said the drugs were not his, he did not know how they got there, and he could not even say for sure they were illegal drugs. That led to his next question

How Do We Know The Drug Lab Tested The Drugs Properly? How Do We Know The Drugs are Actually Illegal?

I reminded Patrick that the Government must prove the drug lab correctly tested the substance and accurately determined the weight and authenticity of the substance. There have been integrity issues in local labs in the Dallas/Fort Worth area where employees made mistakes that compromised the integrity and reliability of the testing. In those instances, we can retest the drugs and sometimes learn that the substance that was identified as being an illegal drug was in fact not a drug at all.

Additionally, I reminded Patrick that sometimes drug labs make mistakes on calculations on the drug level. Retesting the drugs may sometimes provide a defense to lower the drug charge to a lesser charge based upon the weight alone. Sometimes a retesting of the drugs can result in a weight sufficient to lower a felony drug charge to a lesser misdemeanor charge or you may have a very small amount of a drug that after it has been retested may no longer even constitute a useable quantity. Without a useable quantity of the illegal substance, you do not have possession of an item that constitutes a crime under Texas law.

Patrick seemed overwhelmed with all this information and I could tell he was still worried. He finished up his questions to me by wanting to know…

If The State Can Prove Everything, Is There Still A Way I Can Get This Drug Case Dismissed and Expunged From My Record?

Yes! I reassured Patrick it was still possible. Even if the State of Texas could prove the case beyond a reasonable doubt, we may be able to secure a conditional dismissal or a dismissal because of a Drug Diversion Program

Patrick had never heard of a conditional dismissal and wanted to know more details. A conditional dismissal is a negotiated settlement between the criminal defense attorney and the prosecutor that provides an opportunity for a criminal case to be dismissed if Patrick is willing to complete some conditions upfront. For example, if Patrick is willing to do community service hours, clean drug tests and completion of a drug course, the prosecutor may be willing to dismiss the case. This option only becomes available by the efforts of a criminal defense attorney negotiating with the prosecutor.

Patrick also wanted more details about the Diversion Program Options. Specifically, in Tarrant County, Texas, there are 3 main Drug Diversion Programs to consider. These programs were important for Patrick to consider because completion of a Diversion Program allows for an Immediate Eligibility for Expunction in some circumstances!

Deferred Prosecution Initiative (DPI) – the Deferred Prosecution Initiative is a Tarrant County Diversion Program designed to establish sobriety by providing a second chance for first-time offenders. The program was designed to allow first-time offenders to “self-correct” and prove their sobriety in exchange for a dismissal of their criminal case. Patrick was interested in the requirements –

Deferred Prosecution Initiative (DPI) Requirements and Parameters:

  • Must be a first-time offender
  • 25 years of age or OLDER at the time of the offense (no youthful offenders)
  • No prior juvenile cases
  • MUST complete the application and be admitted into the program within 90 days of case being filed
  • Hair test to be given through Tarrant County Probation
  • Program fee of $300.00
  • Orientation where paperwork is processed, and the case is continued for completion of the program
  • Drug Testing
  • Completion of a 4-hour Drug Education Course or show proof of continued therapy or counseling
  • Length of program = 6 months

The primary benefit of the Deferred Prosecution Initiative (DPI) is that upon completion of the program, you are IMMEDIATELY eligible for an expunction. I wanted Patrick to understand that if we accomplish a dismissal under a traditional dismissal, he will have to wait the mandatory 3-year statute of limitations for the felony charge he received.

The primary risk of the Deferred Prosecution Initiative (DPI) is that if you fail to complete the program, you will be at the mercy of the court as to your fate. In other words, you have already stood in front of the judge and agreed to plead guilty to your drug charge. You will no longer have the right to a jury trial. You only have a right to be sentenced by the judge. The judge could give you probation or he could sentence you anywhere within the range of punishing for your charge.

Patrick needed to understand that if you are going to consider a Diversion Program, You need to make sure you complete it!

Eligible Drug Offenses for Consideration of the Deferred Prosecution Initiative (DPI):

  1. Possession of marihuana under 2 ounces (Misdemeanor)
  2. Possession of marihuana 2-4 ounces (Misdemeanor)
  3. Possession of marihuana under 2 ounces, drug free zone (Misdemeanor)
  4. Possession of controlled substance (PG3), under 28 grams (Misdemeanor)
  5. Possession of controlled substance (PG2A), under 2 ounces (Misdemeanor)
  6. Possession of controlled substance (PG2A), under 1 gram (Misdemeanor)
  7. Possession of a dangerous drug (Misdemeanor)
  8. Possession of marihuana 2-4 ounces, drug free zone (State Jail Felony)
  9. Possession of controlled substance (PG1), under 1 gram (State Jail Felony)
    1. Excluding heroin and fentanyl
  10. Possession of controlled substance (PG1A), fewer than 20 abuse units (State Jail Felony)
  11. Possession of controlled substance (PG2), under 1 gram –Drug Free Zone (Felony)
    1. Limited to amphetamine, lisdexamfetamine, methoxy methamphetamine (ecstasy/MDMA), psilocybin, psilocin, Tetrahydrocannabinol (THC)in the form of edibles, vape pens, cigars, waxes, oils
  12. Possession of controlled substance (PG2), under 1 gram (Felony)
    1. Limited to amphetamine, lisdexamfetamine, methoxy methamphetamine (ecstasy/MDMA), psilocybin, psilocin, Tetrahydrocannabinol (THC)in the form of edibles, vape pens, cigars, waxes, oils
  13. Possession of controlled substance (PG2), 1 gram < 4 grams (Felony)
    1. Limited to methoxymethamphetamine (ecstasy/MDMA), psilocybin, psilocin, Tetrahydrocannabinol (THC)in the form of edibles, vape pens, cigars, waxes, oils
  14. Possession of controlled substance (PG2), 4 <200 grams (Felony)
    1. Limited to Tetrahydrocannabinol (THC)in the form of edibles, vape pens, cigars, waxes, oils
  15. Possession of controlled substance (PG4), under 28G (Misdemeanor)

Deferred Prosecution Program (DPP) – the Deferred Prosecution Program is a diversion program that considers drug offenses for admission. The program is designed specifically for first-time offenders with no prior criminal history. There is virtually no supervision involved in the program. It is designed to be a second chance to first-time offenders.

The ideal applicant must not be older than 24 years of age, must not have had a previous juvenile adjudication or adult class b misdemeanor or above offense and must be able to pass a drug test. There are two tracks available under the Deferred Prosecution Program – Track A is the traditional DPP track consisting of an application, background investigation, orientation and passing of a drug test. Track B is specific to marijuana and certain substance abuse charges. Track B involves an application, background investigation, an orientation and periodic drug tests as part of the program.

There is a strict 90-day deadline from the filing of the case that must be met to be considered for admission to the program.

A short summary of the DPP Program requirements include:

  • Fees
    • Track A fee = $125
    • Track B fee = $225
  • Orientation – requires a parent or accountability partner to be present for the 2-hour orientation where paperwork is signed and finalized to begin the program
  • Length of Program
    • Misdemeanor Drug Crimes – 4 months
    • Felony Drug Crimes – 8 months
  • Drug Test

Eligible Drug Offense for Consideration of the Deferred Prosecution Program (DPP)

  1. Possession of marihuana under 2 ounces (Misdemeanor)
  2. Possession of marihuana 2-4 ounces (Misdemeanor)
  3. Possession of marihuana under 2 ounces, drug free zone (Misdemeanor)
  4. Possession of controlled substance (PG3), under 28 grams (Misdemeanor)
  5. Possession of controlled substance (PG2A), under 2 ounces (Misdemeanor)
  6. Possession of controlled substance (PG2A), under 1 gram (Misdemeanor)
  7. Possession of a dangerous drug (Misdemeanor)
  8. Possession of marihuana 2-4 ounces, drug free zone (State Jail Felony)
  9. Possession of controlled substance (PG1), under 1 gram (State Jail Felony)
    1. Excluding heroin and fentanyl
  10. Possession of controlled substance (PG1A), fewer than 20 abuse units (State Jail Felony)
  11. Possession of controlled substance (PG2), under 1 gram –Drug Free Zone (Felony)
    1. Limited to methoxy methamphetamine (ecstasy/MDMA), psilocybin, psilocin, Tetrahydrocannabinol (THC)in the form of edibles, vape pens, cigars, waxes, oils
  12. Possession of controlled substance (PG2), under 1 gram (Felony)
    1. Limited to methoxy methamphetamine (ecstasy/MDMA), psilocybin, psilocin, Tetrahydrocannabinol (THC)in the form of edibles, vape pens, cigars, waxes, oils
  13. Possession of controlled substance (PG2), 1 gram < 4 grams (Felony)
    1. Limited to methoxy methamphetamine (ecstasy/MDMA), psilocybin, psilocin, Tetrahydrocannabinol (THC)in the form of edibles, vape pens, cigars, waxes, oils
  14. Possession of controlled substance (PG2), 4 <200 grams (Felony)
    1. Limited to Tetrahydrocannabinol (THC)in the form of edibles, vape pens, cigars, waxes, oils
  15. Possession of controlled substance (PG4), under 28G (Misdemeanor)

First Offender Drug Program (FODP) – the First Offender Drug Program is a drug diversion program designed for people who are first-time offenders and need little to no supervision. The positive to considering this program is that if you complete the terms and conditions of the program, your drug case is dismissed, and you are eligible for an expunction. The negative to this program is that you are required to plead guilty before the judge to the charge as a condition of entering the program. As a result, if you violate and are kicked out of the program, you go straight to sentencing and the judge can sentence you according to the range of punishing for your drug case. There is a strict 90-day deadline from the filing of the case that must be met to be considered for admission to the program.

Once accepted into the program, Patrick would report to a case manager to complete the admission paperwork and to his respective court he is assigned to (depending upon felony or misdemeanor) to complete the plea agreement. In this instance, because Patrick’s case was a felony, he would be required to report to the 372nd District Court in Tarrant County, Texas, Judge Scott Wisch presiding.

A short summary of the requirements of the program include:

  • No alcohol or drug use permitted during the program
  • You must have a High School Diploma or GED and you must pay all program fees in full
  • If a felony drug charge is involved, there is a $550 program fee
    • The felony program lasts for 180 days
    • Two urinalysis per month and 2 hair tests are required
    • Drug Education Class required
  • If a misdemeanor drug charge is involved, there is a $350 program fee
    • 90-day program for Misdemeanors
    • Two urinalysis per month
    • Short Drug Education Class required

Eligible Offenses for Consideration of the First Offender Drug Program:

  1. Possession of a Controlled Substance, under 1 gram
  2. Possession of a Controlled Substance, 1 – 4 grams
  3. Possession of a Controlled Substance, under 2 ounces
  4. Possession of Marijuana under 2 ounces
  5. Possession of Marijuana 2 – 4 ounces
  6. Drug Free Zone, Controlled Substance under 28 grams
  7. Drug Free Zone Marihuana 2 – 4 ounces
  8. Forging or Altering Prescription
  9. Possession of a Dangerous Drug
  10. Diversion of a Controlled Substance
  11. Attempt of any of the above offenses

Patrick was overwhelmed with the information he had received but relieved to know that he had a clear plan of action to protect his freedom and clear his criminal record.

How did this true story end? Although Patrick had multiple ways we could have attacked the case and achieved a dismissal for him, he chose to consider one of the short Diversion Programs so that he could get his arrest and charge expunged from his criminal record. After completing the 4-month Diversion Program, Patrick and I sat down and prepared his expunction.

Patrick’s story is not unlike anyone else who has been arrested in Texas for a Drug crime. Unfortunately, many people are not provided the information they need to make good decisions after their arrest. We hope this information has clarified how the criminal justice system works, as it relates to Drug cases.

If you have additional questions about your specific circumstances, we want to help you immediately with the answers to those questions.

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