Marijuana Possession – 5 Reasons Why You Need a Lawyer

5. A Lawyer Has a Stake in Your Case.

The biggest problem I see in drug cases is my clients tend to get legal advice from all sorts of non-lawyers. Friends, jailers, bail-bondsman or even school counselors all become instant experts when they learn you’ve been arrested. These people may be very well intentioned, yet, they’ve probably never seen a case from start to finish (and if they have, their experience is really confined to their particular circumstance), and more importantly — they’re not legally or professionally on the hook if they’re wrong and you suffer the consequences. As a licensed attorney, former prosecutor, and lawyer in private practice for many years — I’m simply more qualified to give someone a big-picture of what can or can’t happen with their arrest. Not only this, but I’m ethically bound through the State Bar of Texas.

4. The legal definition of “Possession” is very technical.

Possession is defined by Texas law as “actual care, custody, control or management” of a particular thing. This means the police must prove more than someone was with friends who had marijuana… they must show ACTUAL handling or control of it which is much more difficult to do. Many people think if they were arrested in a compromising situation where someone else’s drugs were around then they are just guilty too. This is not the law and an affective lawyer can advise you about the law of possession and “affirmative links.”

3. Search and seizure law is very technical.

The vast majority of marijuana arrests occur in vehicles. Many officers see it as their unwritten right to dig into people’s car who might be young or look different. The 4th Amendment to the U.S. Constitution prevents unreasonable searches for precisely this reason. This constitutional area of the law has been evolving for over 200 years and should be reviewed by a professional.

2. An attorney can plot a roadmap so you’re eligible for expunction (getting the case completely off your record).

Planning for expunction is a detail-oriented process which must be begun at the beginning of the case. People acting as their own lawyer can inadvertently spoil their chances for expunction by doing something as simple as pleading guilty to lesser tickets issued in the same arrest.

1. You’re Facing Possible Jail.  

The main reason is because even the smallest amount of usable marijuana possession is jail-able up to 180 days. While this rarely happens, you wouldn’t fly on a plane with an unqualified pilot even though the odds of a crash were 1 in 1-billion, nor would you operate on yourself even if the medical proceeding had a 1-1billion chance you die in the procedure.

Are K2, Spice, or Bath Salts Legal in Texas?

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

As of September 1, 2011 the substances of K2, Spice, bath salts or any other synthetic chemical compound that is a cannabinoid receptor agonist and mimics the pharmacological effect of naturally occurring cannabinoids is illegal.

The Texas Legislature added the category to Texas Health and Safety Code 481.1031 Penalty Group 2-A which you can read here (though you may need to be a chemist or pharmacist to really understand it).

Substances known as ‘bath salts’ including but not limited to Mephedrone, Cloud Nine, Ivory Wave and Blue Silt are also illegal under this provision.

Punishment for possession of any of these substances can range from a Class B Misdemeanor (0 to 180 days jail plus fine not to exceed $2,000) all the way to a first degree felony (5 years prison to 99 years plus a fine not to exceed $10,000) based on the amount of the substance and/or the circumstances surrounding the arrest (i.e. an arrest in a drug free zone).

The Legal Definition of Drug Possession

Drug crimes in Texas operate very similarly to one another regardless of the substance alleged to be possessed.  While the specific substance and the quantity dictate the level of offense, the law of “possession” in Texas is consistent.

Many people feel as though because they were in a situation where drugs were present that they are guilty of an offense.  Not so in Texas.

“Possession” is defined by Texas Penal Code 1.07(a)(39) as “actual care, custody, control or management.”

The operative word (in my opinion) is “actual.”  This means the prosecution must prove the drugs were in your possession — i.e. that the defendant ACTUALLY exercised some degree of of care, custody, control or management — of whatever contraband they have alleged the accused possessed.

If you think about how the police tend to encounter drugs — then you begin to get an idea of the struggles at trial of how the prosecutor attempts to persuade a jury that the accused actually possessed drugs (and the task of the defense lawyer to defend against the allegations).  Some arrests are done when the drugs are found somewhere in a car.  Some arrests are the result of drugs found under a search warrant, and some arrests come from pat-downs of someone’s person.  In many instances, it’s not clear who possessed or controlled the drugs.

Generally, the prosecution must show some affirmative link between the accused and the contraband.  This means they present circumstantial evidence of possession — for example if drugs are found in a car — who is the car’s owner?  Who was driving?  Who could have put the drugs where they were found?

Case law is very particular about “affirmative links” and where no legal affirmative links exist — a defendant may legally be entitled to acquittal as the State’s evidence of “possession” may be insufficient.

Defending drug possession cases is a very technical and detail oriented task for experienced criminal defense attorneys.

How Drug Charges Get Enhanced in Texas

Police and prosecutors have many tools at their disposal to try and enhance drug cases to higher punishments. Because many off them still believe the only way to fight the war on drugs is to load our jails and prisons with everyday people — they can and do get very creative with how they attempt to maximize charges.

Drug Free Zones

Drug charges can be increased if the offense is alleged to have occurred in a “drug free zone.”  Drug free zones can be very complicated under the Health and Safety Code 481.134(a).  They obviously includes schools, but also includes playgrounds where there are three or more apparati.  Also included are facilities such as private day-care centers and even places such as public gyms that supervise children for an hour or so while their parents exercise!  There are other technical issues such as the degree of public access which make these issues very legally intensive.

Police can and do go to great measures to show that a drug offense was committed in a “drug free zone” even where the zone may be coincidental to the case.  Again, the code is complicated and merely because the police think it qualifies as a drug free zone doesn’t make it so.

Intent to Distribute

Although the statutory language differs with regards to the quantities and the substances involved, generally speaking, charges can be increased where a person, “knowingly manufactures, delivers, or possesses with intent to deliver” the contraband in question.  [See e.g. Health and Safety Code 481.112(a) dealing with penalty group 1.]

Police and prosecutors typically try to demonstrate this through surrounding circumstances such as quantity of the drugs found, whether there is paraphernalia which would suggest sales such as plastic baggies, scales, excessive cash, etc.  Obviously, sometimes police will attempt to observe actual drug transactions as well.

In summation, aggressive law enforcement and prosecutors can and do find many ways to try and increase punishment ranges for criminal drug cases.  Often times they over-reach, and this is where an experienced criminal drug defense lawyer can be of great assistance.

Punting Your Rights Away: Agreeing to a Warrant-less Search

Nothing good can happen from a voluntary search.  At best, nothing bad will happen.  Who would ever make a business decision, take a gamble, or play a game with those odds?

In Texas, if you give consent search, your lawyer will have an extremely difficult (if not impossible) time having any evidence of an offense suppressed.

Most people don’t know that police can’t just dig through your car or house just because they want to.  Police must play within the rules and can only search without a warrant or consent during a hand-full of situations.  In fact, Texas law actually presumes that a warrant-less search is actually invalid.  Where you agree to allow the officer to search, however, you’ve punted your rights away.

Police won’t tell you this, but you’ve got the right under the Fourth Amendment to the U.S. Constitution and Article 9, Section 1 of the Texas Constitution to be free from unreasonable search and seizure.  You can refuse many searches.  There are some situations where the police don’t need your consent — such as search warrants.  In those situations, your remedy is to fight the search in court later.

Refusing to allow an officer to search during a traffic stop, for example, is easier said than done.  First of all, the vast majority of the time the officer knows (1) what he or she is after; (2) the law with search and seizure; (3) the magic words they need to get you to say to waive your rights; and (4) most people they encounter on the road are subservient to authority and will have a hard time saying no if pressed.

Many people think that if they refuse the search, the officer may become agitated and retaliate somehow by writing more tickets, calling other police to the scene, or trying to search anyway.  Some, all, or none of these things may happen — but what will absolutely happen is that you will waive your valuable rights which will be painfully obvious during later court proceedings.  If we were to stack all the 4th Amendment cases, the pages would go all the way to the moon. Courts have dealt with virtually any scenario you can think of… and the police really do have tons of limitations you may not know about.

Here’s a video from the ACLU that talks about police encounters.  It’s a bit odd and goofy, but is very informational and captures the general tone of some police encounters.  It’s obviously not a “how to get away with breaking the law” video, but is intended (as with this blog) to be generally informative of legal rights.

Drug Use Data From The National Institute on Drug Misuse

The NIDA has recently made available a diagram showing past illicit drug use reports. By and large, the results are really encouraging, from 2006 to 2007, the fraction of 8th graders reporting lifetime use of any illicit drug decreased from 20.9% to 19.0%. The recorded past year use amongst 8th graders dropped from 14.8% to 13.2%. Furthermore, past year incidence has gone down by 44% amongst 8th graders since the peak year of 1996, past year prevalence has decreased 27% amongst 10th graders and 15% with 12th graders since the peak year of 1997.

Cigarette smoking continues to fall to the lowest level in the questionnaire’s history. Between 2006 and 2007, reductions were observed in lifetime, past month, and daily cigarette use amongst 8th graders. While there were no 1-year reductions for 10th and 12th graders, all grades have carried on a longer term trend of decreasing cigarette use.These findings are particularly noteworthy since tobacco addiction is one of the leading preventable contributors to many of our Nation’s health problems.

Past year use of cannabis by 8th graders decreased from 11.7% in 2006 to 10.3% in 2007. Between 2001 and 2007, past month pot use declined by nearly 25% for 8th, 10th, and 12th graders combined.

Since 2006, past year steroid use dropped in 8th, 10th, and 12th graders combined from 1.3% to 1.1%.

Meth misuse continues to fall – between 2006 and 2007, lifetime and past year use with 8th and 12th graders decreased.

A substantial long-term decline was observed in past year alcohol use with 8th graders, down to 31.8% from its peak of 46.8% in 1994. Moreover, past year use of flavored alcoholic beverages with 10th graders dropped from 48.8% in 2006 to 45.9% in 2007.

Even with these positive trends, there are a lot of remaining areas of concern. The NIDA graph reported alarming non medical use of Oxycontin and Vicodin by 12th graders.

In 2007, 15.4% of 12th graders reported using a prescription drug non medically within the past year. Vicodin continues to be over used at unacceptably high degrees. Thinking toward substance abuse, often seen as harbingers of change in abuse rates, were primarily steady. However, with 8th graders, perceived risk of harm associated with MDMA lessened for the third year in a row. Attitudes towards using Acid also softened amongst 10th graders this year. Between 2005 and 2007, past year abuse of Ecstasy heightened with 12th graders from 3.0% to 4.5%; and between 2004 and 2007, past year misuse of MDMA increased amongst 10th graders from 2.4% to 3.5%. The report included several categories including amphetamines, sedatives/barbiturates, tranquilizers, and opiates other than heroin.