Drug Crimes | Criminal Defense Lawyer | Ed Chernoff
If you are faced with charges for possession of drugs, such as cocaine, heroin, methamphetamine or prescription drugs, you are not alone. In 2016, more than 145,000 drug arrests were made by law enforcement. Over 80% of these arrests were for simple possession of a drug. This is a huge number and underscores the seriousness of how Texas treats drug possession and delivery.
Of course, the focus of law enforcement is on possession since this is a much easier arrest to make. Most drug possession cases originate from traffic stops or from pat down searches on the street. They are arrests of opportunity. As a result, many of these arrests are tainted by illegal searches or seizures.
As a result of the sheer number of arrests, there has been a shift in mentality by prosecutors in large counties about how to handle small drug cases. A first time possessor of a small amount of cocaine, heroin or meth might be able to avoid jail time or conviction by agreeing to a program designed to treat and educate drug users. These programs have proliferated, but not all counties have them and the conditions are sometimes quite difficult.
Drug Charges in Houston Requires the Best Drug Defense Lawyer | Ed Chernoff Provides Strong Defense in Your Drug Case
It is absolutely vital that you hire an experienced drug crimes lawyer to help you in your drug case. Ed Chernoff has the experience, reputation and insight to make sure that you get the best possible result in your drug possession or delivery case. He has negotiated thousands of dismissals through his 30 years of practice and can help you too!
No matter the amount, effective defense of drug cases generally fall into three categories: 1) The items seized weren’t illegal drugs, 2) The drugs were not “possessed” by the accused person, or 3) The drugs were seized as a result of a violation of the accused person’s constitutional or statutory rights. The latter defense is normally addressed through a pretrial motion to suppress, however in Texas a defendant can submit to the jury a factual dispute relating to a constitutional issue.
In Texas, drugs are classified in four penalty groups, penalty group one providing for the most severe punishment. Depending on the amount, simple possession of a drug in penalty group four or three may be a misdemeanor. Whatever the charge, conviction for a drug offense may carry with it collateral punishment, such as a driver’s license suspension.
Most of our clients come to us with far too much to lose than to accept a drug conviction. Even a deferred adjudication for a State Jail felony can remain on a person’s record for more than a decade. Employers are cautious about hiring people who have a history of drug use and it is now exceptionally easy to get such information from online criminal record sources.
Types of Drug Crimes
Possession of Marijuana Is Illegal in Texas
It is illegal to possess Marijuana in the State of Texas. Possession of Marijuana is a Class B misdemeanor, if the amount possessed is less than two ounces. Possession of over two ounces and less than four ounces will result in a Class A Misdemeanor. Possession above that amount is a felony, its degree determined again by the amount possessed. Delivery of marijuana to a child is a second degree felony in certain circumstances and will be aggressively pursued by prosecutors. Possession of any illegal drug in a school zone will further increase the level of offense. Trafficking of marijuana is a federal offense. Depending on the quantity of marijuana you are accused of trafficking, you may be imprisoned for many years. If you have been charged with an offense concerning marijuana possession, a Houston drug lawyer may be able to successfully defend you.
What Are the Penalties for Weed in Texas?
Marijuana is the most common illegal drug in the United States. According to the National Survey on Drug Use and Health, the most recent statistics show that possession and use of marijuana is increasing across all age groups. In fact, in some states possession of marijuana for personal use is now legal.Not so in Texas. In some counties, the penalties enforced for possession of marijuana can be severe. Possession could result in the suspension of your license. This is why you need a strong Possession of Marijuana Attorney!
|< 2 ounces||Class B Misdemeanor|
|2 ounces – 4 ounces||Class A Misdemeanor|
|4 ounces – 5 pounds||State Jail Felony, |
180 days to 2 years in State Jail
|5 pounds – 50 pounds||3rd Degree Felony, |
2 to 10 years in prison
|50 pounds – 2000 pounds||2nd Degree Felony,|
2 to 20 years in prison
|> 2000 pounds|| 1st Degree Felony, |
5 years to life in prison
Pretrial Diversion for Possession of Marijuana
In Harris County and some other large counties in Texas, the District Attorney has a pretrial diversion program for possession of small amounts of marijuana. Not everybody is immediately eligible. However, a good drug lawyer can fit you into this program, even if you have a criminal record.
Pretrial diversion can be a good option for an accused. However, it may have downsides and you should be careful about agreeing to any contract unless you have representation. It may be that your case can be dismissed without agreeing to conditions.
Contact a Houston Possession of Marijuana attorney for an aggressive defense against drug charges involving marijuana.
Possession of Cocaine, Heroin, Methamphetamine and other Schedule 1 drugs
The State of Texas categorizes drugs into four penalty groups. Possession or delivery of any drug in penalty group 1, which includes Cocaine, Heroin and Methampthetamine will result in penalties ranging from 180 days in a State Jail up to life in prison, depending on the amount of drugs possessed. Possession or Delivery of a penalty group 1 substance of more than 1 gram and less than 4 grams is a third degree felony.
Possession of Cocaine less than a gram is considered a State Jail Felony in Texas and carries with it a punishment of up to two years in the State Jail. That is only part of the story, however. Cocaine is a familiar drug on the street, and is sold in bars and taverns regularly, It is easy to forget the fact that possession is a felony, especially when it appears to be sold so openly. However, any drug crime on your record will limit your employment, negatively affect your credit and drivers license.
The time is long past when prosecutors viewed cocaine as a drug of the underworld that requires severe punishment in prison. In the eighties and nineties, it was not uncommon for people to receive decades in prison for cocaine offenses. This has changed, in large part because of prison overcrowding.
These days, Prosecutors – especially in the large municipalities – are geared towards probation and treatment as the main way of handling small cocaine possession. However, this does not fix the problem that troubles most of our clients, a record for drug possession. A probation, including a deferred adjudication sits on the criminal record of the individual for at least five years. This is disastrous to those who are hoping to progress in life.
There are other options available besides pleading guilty to drug possession. It starts with hiring a criminal lawyer who has experience with the constitutional requirements of search and seizure. At Chernoff Law, we know how to keep you from suffering from incarceration and a criminal record for possession or delivery of cocaine, methamphetamine or heroin. Call us today!
What Are the Penalties for Possession of Heroin, Cocaine and Methamphetamine
|< 1 gram|
State Jail Felony,
180 days – 2 years in State Jail
1 – 4 grams
3rd Degree Felony,
2 to 10 years in prison
|4 – 200 grams|
2nd Degree Felony,
2 to 20 years in prison
|200 – 400 grams|
1st Degree Felony,
5 years to life in prison
|> 400 grams|
Minimum punishment is 10 years in prison,
up to life
You Can Be Charged with a Prescription Drug Crime
It is illegal to possess a drug like hydrocodone, oxycontin, codeine, xanax or soma unless they have been prescribed by a licensed medical professional. These pain killers and benzodiazepams are normally found in Penalty Group 3 of Health and Safety Code § 481.104, which means that possession of a small amount less than 28 grams is a Class A misdemeanor. Any greater amount would constitute a felony.
The illegal trafficking of prescription drugs has continued to grow over the last several years. The Internet has made it easier to buy and sell these drugs. Mexican border town pharmacies are a popular source of illegal pharmaceuticals seized by the DEA’s (Drug Enforcement Administration) Houston Field Division. There has also been an increase in trafficking by senior citizens, and an increase in overdoses by those who have obtained prescription drugs illegally. As a result, the prosecution of and sentences for these crimes have become as harsh as those for the sale of illegal non-prescription drugs. It is imperative that if you are charged with possession of prescription drugs that you hire a strong Houston prescription drug lawyer!
It is a sad but true fact that when a person becomes addicted to prescription drugs, there is a much higher potential for engaging in illegal activities to obtain those drugs. If you end up in legal difficulties, you will need a competent attorney to help get you out of them. A Houston drug crime lawyer from Chernoff Law can offer experience from handling many prescription drug cases in the past. Trafficking in prescription medication carries serious prison time and stiff fines. Whether you are accused of trafficking or simple possession, we will tenaciously defend your case.
Prescription Drug Fraud and Other Prescription Drug Crime Charges in Houston
Another prescription related drug crime is prescription fraud. The crime of prescription fraud occurs when a person obtains a prescribed controlled substance through misrepresentation, counterfeiting or forgery. These methods are used both for distribution purposes, and for personal use. Prescription fraud is commonly done by altering, stealing or creating fake blank prescription slips. Other related offenses are:
- Selling one’s own legal prescription or distribution it to others
- The illegal manufacturing of prescription drugs
- Obtaining a drug by false prescription
Obtaining a prescription by fraud can be charged as high as a second degree felony, requiring punishment of up to 20 years in prison, depending on the type of drug obtained. Possession of a controlled substance in Penalty Group 3, through a fraudulent prescription is a third degree felony, allowing for punishment between 2 to 10 years in prison.
Doctors are becoming the targets in the war against prescription drugs. Medical Doctors who have been long advised to treat pain aggressively are now being scrutinized for their prescription habits. These doctors are now facing drug charges for over prescribing, just as drug users have faced in the past. This is especially so on the Federal level. See Blog Post “The War Against Doctors”
With former prosecutors on our team, we know how to go after the holes in the prosecution’s case. If we can prove that your 4th amendment search and seizure rights were violated, we will fight to have the evidence suppressed so the state will not be able to make a case against you.
State vs. Federal Crimes
The State of Texas and the Federal Government investigate and prosecute the same type of drug cases. The State Courts have always handled the small amount drug delivery and possession cases, and these cases are typically classified as State Jail or 3rd Degree felonies. However, large drug cases can wind up in a Texas Criminal Court or United States District Court, depending on which agency has done the investigative work. An experienced Houston Drug Lawyer is absolutely necessary in either Federal or State Court!
In the past, it was rare for a Harris County prosecutor to handle a multi-kilo drug case, but there is gold in such prosecutions, both in forfeitures and State and Federal grants. Many large DA’s offices now have special drug crimes prosecution divisions assigned to handle the larger cases. It is no longer uncommon to find the local District Attorney prosecuting cases involving as much as twenty kilos of cocaine.
In some respects, the State court is a more attractive forum for the accused. Unlike Federal Court, the State District Judge is not required to consult guidelines to determine the proper sentence. Also, in Texas, an accused may submit punishment decisions to the Jury. This has proven particularly helpful when the accused is a mere courier or ancillary member of some conspiracy. As a result, we have succeeded in obtaining probation for clients in even large drug cases in State court.
In Federal prosecutions, punishment is determined by guidelines that are supposed to determine the appropropriate sentence. The guideline sentence is advisory, but Federal Judges rarely vary too far from the calculation.
Federal Prosecution of Drug Cases
As noted, Federal prosecutors prefer to charge individuals who are involved in the possession, sale and distribution of large amounts of drugs. These cases have usually culminated as a result of long term investigations by FBI or DEA agents. However, on occasion a seizure may be made on the fly or by luck by a State law enforcement agent, and the Federal Government will get involved.
Title 21 of the United States Code describes those drug crimes the Federal Government prosecutes. 21 USC 841 states that it is illegal to possess with intent to distribute, manufacture, distribute, or dispense a controlled substance. Any of these acts will result in punishment of no less than ten years for 1 kilogram of heroin or 5 kilograms of cocaine. Possession with intent to distribute methamphetamine carries with it a punishment of no less than five years for amounts between 5 grams and 50 grams.
The vast majority of time the Government prefers to charge a targeted individual with conspiracy to deliver or possess with intent to deliver. However, most drug prosecutions include more than one count and it is not uncommon to see an indictment that contains a possession with intent to deliver count, along with a conspiracy count and forfeiture count. Sometimes money laundering is charged, which has its own guideline. All of these counts can be negotiated away if the time comes to settle the case.
Federal Drug Conspiracy
It is rare indeed to find a drug indictment without some drug conspiracy count. It is a favorite of federal prosecutors, and for good reason. It’s a procedural gift, allowing the government to charge many people for the same crime, even if the relationship between the defendants is tenuous. On more than one occasion we have sat with a client during a mass detention hearing, and been told that he doesn’t recognize the face or names of any of the other defendant’s sitting at counsel table!
18 U.S.C.§371 makes it a crime for “two or more persons to conspire. to commit any offense against the United States.” Possession or Delivery of a controlled substance is one such offense. No actual offense need be proven, but the government must prove that one of the co-defendant’s committed at least one overt act named in the conspiracy. Usually the government alleges numerous overt acts in the indictment, but they only need prove one to obtain a conviction.
The government often relies on the Pinkerton v. U.S. rule when proving a drug conspiracy. This case states that a conspirator is liable for all foreseeable acts committed by co-conspirators during the course of and in furtherance of the conspiracy. One defendant committing one overt act is sufficient to convict all the defendants, and the overt act needn’t be a crime in and of itself. In fact, it doesn’t even need to be necessary to complete the offense the parties allegedly conspired to commit. However, when the overt act is a crime, even if not planned by the co-conspirators, all can be held liable.
You can see the problem. When everybody is responsible for the actions of one, the potential for an innocent to get wrapped up in a drug conspiracy is great. Perhaps as bad, co-conspirators on the fringes of the scheme – a drug courier, for example – can find their time under the sentencing guidelines balloon as a result of the actions of someone they have never met.
Your attorney must be prepared for the spider web of technicalities and jurisprudence that has expanded the advantages of government in a charged drug conspiracy. A federal drug conspiracy trial is a surreal experience and is no place for a novice. If you’ve been charged with federal conspiracy give the experienced Board Certified lawyers at Chernoff Law a call. We don’t charge for consultation.