Wednesday, July 18, 2012

Texas Penalties for Possession of Controlled Substance

In September of 2011 the Texas legislature amended the Lone Star State’s drug laws by adding both bath salts and synthetic marijuana to the Texas Controlled Substances Act. Now punishable under Penalty Group 2A, adding any amount of a synthetic chemical which is a known cannabinoid receptor, mimicking the effect of natural marijuana could result in an arrest. These chemical compounds include synthetic marijuana, “spice” and K2. Far removed from what most of us think of when we hear the phrase “bath salts,” that term now represents a synthetic substance which closely resembles cocaine. Under the umbrella term of bath salts are such substances as Mephedrone, Cloud Nine, Ivory Wave and Blue Silt.

Proving Possession

There are many ways to defend a drug possession charge in Texas however you must have an experienced Houston criminal defense attorney who is well-versed in the defense of drug charges. The element of possession is crucial as the very word carries a specific meaning and can differ from the average person’s interpretation. Possession is defined in Texas as “actual care, custody, control or management.” The key word here is “actual,” meaning the state must prove the drugs were in your possession—that you intentionally and with full knowledge had a drug in your possession listed under Penalty Groups 1-4 (unless you have a valid prescription for the substance).

It must be proven that you actually exercised a great degree of care, custody, control or management of the drug. Since many drug arrests in Texas involve finding drugs in a home or car it can be unclear who actually possessed or controlled the drugs. The individual must have full knowledge of possession—if they are unaware, then no crime has been committed. This could happen when an individual borrows a friend’s car only to be pulled over and charged with possession when marijuana is found in the glove box.

Keeping the above items in mind, according to Texas law the offense of drug possession occurs when a person has knowledge that they have a controlled substance within their control and have the intent to possess that substance. Every controlled substance in Texas is divided up into five separate penalty groups used to establish the punishments and penalties for those charged with a drug offense.

Penalty Groups and Punishments

The most serious group of controlled substances falls under Penalty Group One and will result in the most severe punishments. On the other end of the spectrum is Penalty Group Four which brings lesser punishments for possession of drugs however the charges are still quite serious. As an example, PG-2 contains those substances considered to be likely to lead to drug abuse although some of them are used in medicinal applications. These are drugs such as magic mushrooms, mescaline, psilocin and psilocybin. Penalties for a drug possession conviction on a PG-2 offense can be stiff, even ending in a felony conviction. The penalties could include a state jail felony or the much more serious first-degree felony, depending how much of the substance was involved. Specifically the following penalties are possible when a person is convicted of possession of a controlled substance in the state of Texas:

Penalty Group One — This group encompasses such drugs as opium, morphine, heroin, cocaine, methadone, oxycodone, hydrocodone, rohypnol, methamphetamine, ketamine and scores of derivatives from these drugs. Depending on the amount of the controlled substance possessed, if convicted a person could pay from $10,000 to $100,000 in fines, and be sentenced to state jail felony from six months to two years all the way to an enhanced first degree felony which could result in 10-99 years in a state prison. Penalty Group One A-includes the drug LSD with similar penalties as Group One.

Penalty Group Two — This group of controlled substances includes drugs in the hallucinogenic categories such as Ecstasy, PCP, mescaline, psilocin, synthetic marijuana and many more sub-categories of these drugs. Just like Penalty Group One, possession of these drugs can result in fines from $10,000 to $50,000, depending on the amount possessed, as well as jail time from six months to 2 years for less than one gram all the way to five-99 years in a Texas state prison for 400 grams or more.

Penalty Group Three — This penalty group contains drugs such as Valium, Xanax, Ritalin, Diazepam, Lorazepam, Lysergic Acid, Nitrazepam, Pentobarbital, Secobarbital and Sulfonmethane to name just a few. In this group any amount less than 28 grams is considered a Class A misdemeanor bringing penalties of up to a year in county jail and fines not to exceed $4,000. On the other end, within this penalty group, possession of over 400 grams will be charged as an enhanced first-degree felony resulting in 5-99 years in state prison and fines of $50,000 or less.

Penalty Group Four — The drugs in this group are compounds, mixtures or preparations which contain limited quantities of narcotic drugs along with one or more non-narcotic active medicinal ingredient. Even though this class of drugs may sound mild, possession of 400 grams or more will result in the same enhanced first-degree felony that a Penalty Group 2 or 3 brings—5-99 years in state prison and a fine up to $50,000. Lesser amounts still bring six months to 20 years in jail or prison and fines from $2,000 to $10,000.

Possession of marijuana is in a separate drug offense category in Texas but is still extremely serious with the potential of being charged as a felony or misdemeanor, depending on the amount possessed. All charges in Texas for drug possession are quite serious. This is not the time to hide your head in the sand and hope for the best—you need an aggressive attorney who will fight hard to get your charges dismissed or possibly reduced. A drug conviction on your record will follow you for the rest of your life, so take it very seriously and hire an attorney who does the same.

Author: Sullo & Sullo Attorneys

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