Can I Beat a Drug Possession Charge in Texas?

Even a first-time drug charge comes with consequences, but there are some options that may allow you to beat a possession charge. The likelihood of doing so, however, depends a great deal on getting an experienced criminal defense lawyer in Dallas, TX on your side as soon as possible.

Possession is the least-serious drug charge in Texas, but you shouldn’t allow that to make you complacent. Having a conviction on your record is a serious thing and will have long-term consequences that it’s better not to mess with.

With any criminal charge, the prosecution has to prove a couple of things to convict you, and these things have to be proven “beyond a reasonable doubt.” That’s a pretty high bar. Here’s the elements that have to be proven:

If you had actual possession (it was on your person), the charge will be harder to beat than if it was only in your presence (“constructive possession”), but in either case, the prosecution has to prove these key elements to get a conviction.

If you have less than a gram of most of the serious controlled substances, you can be convicted of a felony; however, if it’s your first conviction, there’s a good chance you’ll be able to get probation instead of jail time. Even if it’s not your first time, under the right circumstances, and with a small enough amount, it may still be possible.

It’s worth knowing that marijuana has some different rules. Having two ounces or less is just a Class B misdemeanor, not a felony. Having two to four ounces makes it a Class A misdemeanor. With Class B, you’re looking at up to $2,000 in fines and 180 days in jail. With Class A, it’s up to a year in jail and a fine of up to $4,000. If you have more than four ounces, you can be charged with a felony, though ultimately, it’ll depend on the circumstances.

Finally, there are some illegal substances that are classified as Group 3 or Group 4 drugs, and these have lower penalties than things like heroin. Substances in these categories are prescription drugs and do have a valid use, so you would only get in trouble for having them if you don’t have a prescription for them, or you have more than your prescription allows. This would include drugs like Valium and Xanax. If you have less than 28 grams of these, it’s a Class B misdemeanor. More than 28 grams makes it a Class A misdemeanor.

As mentioned above, you can often get probation instead of jail time if you’re a first-time offender and even if you’re not, under certain circumstances. But what’s even better than probation is beating the charge altogether. Here are some possible defenses:

Remember: the prosecution has to prove your guilt beyond a reasonable doubt. For this reason, your defense attorney may not so much try to prove your innocence as cast doubt on the prosecution’s narrative. Don’t be frustrated with this. Even if you’re completely innocent, it’s hard to prove a negative (i.e., prove you didn’t do it). It’s actually more effective in many cases to go after the prosecution’s evidence instead.

If you had a prescription drug and can show you have a prescription, even if you didn’t have the prescription on you when you were found with the drugs, this is a great defense.

In some cases, your attorney will challenge the presumption that the substance was illegal at all. The police might have been mistaken about what they found, you might have a valid prescription for it, or it could be that the drugs themselves don’t have a clear chain of custody from the time the police gathered them and thus it can’t be proved beyond any doubt what exactly it was you were found with.

Another good defense is showing that the drugs belonged to someone else, or at least that it’s likely they did. For example, if you were found actually smoking marijuana, with more on your person, obviously it would be very hard to argue that the marijuana wasn’t yours. But if you were in a shared home with several people, and the drugs were in a kitchen cabinet or desk drawer, it’s a lot easier to argue that they weren’t actually under your control at all.

If your rights were violated at any point in the arrest, this may allow you to beat the charge. If the police didn’t have a warrant or probable cause to search your home or pull you over, for instance, anything they found in that search may be excluded from the case. If you were asked questions after you invoked your right to call a lawyer, depending on the circumstances, this could be helpful to your case.

If you were caught with a small amount of drugs and were not involved in any other activities (like selling the drugs), it’s very possible that you’ll only be sentenced to community supervision, depending on the skill of your lawyer. Otherwise, you’ll be facing a misdemeanor Class A or B as described above, or a felony. State jail felonies are the lowest type and come with a fine of up to $10,000 and up to two years in prison. If you have a larger amount of drugs, you may be facing a third-degree felony, which comes with a prison sentences of two to ten years and a fine of up to $10,000. If the amount you had was so large that it’s unlikely it could possibly have been for personal use, you may also be facing much more serious charges, like intent to distribute, manufacturing with intent to deliver, or even trafficking.

Because the consequences are so severe, it’s essential to have a lawyer working on your defense as soon as possible. Your lawyer will investigate the details of the case, look for weaknesses in the prosecution’s story, and protect you from improper questioning. Your lawyer will advise you on what to say and when and will help you decide if a plea bargain is a good deal. If it seems unlikely you’ll be able to beat the charge, your lawyer may be able to plea bargain down to a lesser charge with fewer penalties. However, you never want to accept a plea bargain without a lawyer’s advice. The prosecution isn’t on your side and won’t be inclined to offer you a good deal if they think they can get you to agree to one that makes things easy for them. Your lawyer will negotiate for you and carefully review all proposed deals to make sure they’re in your best interests and the best you can ask for in the circumstances.

If you’ve been charged with any drug crime, the sooner you get started on your defense, the better. Contact the Pelley Law Office in Dallas today for help.