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

August 31, 2012 By Jeremy Rosenthal Leave a Comment

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).

Filed Under Drug Crimes, Uncategorized Tagged With are bath salts illegal, bath salt lawyer, criminal defense attorney, is k2 illegal, is k2 legal in texas, is spice legal in texas, k2, k2 lawyer, mckinney criminal defense attorney, spice lawyer, texas bath salt law, texas bath salt laws, texas k2 laws, texas spice laws

The Legal Definition of Drug Possession

June 3, 2010 By Jeremy Rosenthal Leave a Comment

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.

Filed Under Drug Crimes Tagged With Drug Crimes, possesssion

Motions to Suppress

June 2, 2010 By Jeremy Rosenthal Leave a Comment

A Motion to Suppress is where a criminal defendant challenges the legality of a search, seizure, arrest and/or attainment of evidence they allege to have been obtained by law enforcement illegally.  If the defendant wins their motion, the evidence is excluded at trial.  Depending on the facts of any specific case, the suppression of evidence may mean the State’s evidence at trial will be insufficient to sustain a conviction — or it may only eliminate the jury considering damaging evidence during the trial.

Texas Code of Criminal Procedure 38.23 says in relevant part, “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”

This provision stems from the Fourth Amendment to the U.S. Constitution and it’s prohibition against unreasonable search and seizures.  Search and seizure law and determining what is or is not a valid or legal arrest, search and/or seizure is a highly complex and highly complicated area of the law.

In Texas, there is actually a legal presumption that if a search is warrant-less, that the search is invalid.  The prosecution can over-come this burden with clear and convincing evidence that the search was valid during a hearing before the Judge.

Motions to suppress are common ways of defending criminal cases.  Again, if evidence is attained illegally and it is excluded, the prosecution may lose it’s only evidence as to certain elements of the case.  Where this is the case, they lose as a matter of law.  This isn’t always the case, though, where the prosecution has other ways of proving a crime independent of the illegally attained evidence.

Filed Under Criminal Defense, Drug Crimes, Felonies Tagged With Criminal Defense, Drug Crimes, felony

How Drug Charges Get Enhanced in Texas

June 1, 2010 By Jeremy Rosenthal Leave a Comment

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.

Filed Under Criminal Defense, Drug Crimes Tagged With drug charges

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

June 1, 2010 By Jeremy Rosenthal Leave a Comment

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.

Filed Under Criminal Defense, Drug Crimes Tagged With Drug Crimes, rights