If you've been arrested for possession of drugs, you know that they can create serious problems, especially here in Texas. Whether you obtained them legally or illegally, whether they're legal substances or illegal substances, chances are that the State of Texas will pursue charges to the best of their ability. There are numerous Drug Penalty Groups that can affect the classification of your charge, as well as charges like drug possession or possession of paraphernalia. It's a lot for a person to navigate on their own!
In fact, you want to make sure that you speak with an experienced criminal defense lawyer who can help you navigate charges and possibly a trial. Doug Murphy, a veteran trial attorney, is Board Certified in Criminal Law and has received numerous awards for his work. He combines experience and expertise to make certain that you are given your fair chance at innocence until proven guilty.
Drug possession and paraphernalia
Texas is certainly one of the stricter states when it comes to drug possession. While many states across the nation have legalized marijuana, either for medicinal, recreational, or both purposes, Texas remains vigilant in its drug laws. Arkansas and Oklahoma, to name two nearby states, both allow for medical marijuana.
Paraphernalia, on the other hand, is defined by the Texas Health and Safety Code § 481.002(17) in such broad terms, that something as basic as a plastic bag or a coffee grinder may be considered drug paraphernalia if an officer has reasonable suspicion that it was used for a related purpose.
You may think that it's not a big deal if you're caught with a small amount of weed, however, even an amount as little as .25 ounce, with a sentence enhancement, could result in severe consequences.
What are sentence enhancements?
Explained simply, sentence enhancements are an increase in the punishment for your current crime, based on other factors, especially if you've been convicted in the past for certain crimes. This does not mean those sentence enhancements are part of the current alleged crime. They're additional facts that can increase the penalty or sentence you receive.
With your drug crimes criminal case, this might look like increasing the minimum range of punishment to a more serious classification of crime.
Bipartisan politics supported sentence enhancements in the 80s, and the effects of these often unfair and arbitrary assignments, still impact cases today.
In most cases, criminal defendants have the right to a jury by their peers. If a prosecutor wants to increase your penalty, via a sentence enhancement, there are specific protocols and procedures that they must follow.
Sentence Enhancements in Texas
The history of sentence enhancements in Texas is one of the oldest when it comes to the three-strikes habitual-offender statute; it's been around since 1974 and was the first instance of this type of enhancement at the state level. Writing in 1995, at the federal level, the Assistant Attorney General, stated: “Under the federal "Three Strikes" provision, which is now codified at 18 U.S.C. § 3559(c), the defendant receives mandatory life imprisonment if he or she:
- is convicted in federal court of a "serious violent felony" and
- has two or more prior convictions in federal or state courts, at least one of which is a "serious violent felony." The other prior offense may be a "serious drug offense."
Clearly, the three-strikes rule expanded beyond its influence in Texas. Today, enhancement can have profound consequences on your case, especially if there are extenuating circumstances.
How Will I Know if my Sentence Was Enhanced?
The easiest way to determine whether or not your sentence was enhanced is to look over the indictment—formal charging document—to see if there's an enhancement paragraph. If there is, you'll usually find it toward the end of the document. It's important to remember that even if the prosecutor is alleging an enhancement, a skilled attorney may be able to assist you in fighting the enhancement.
Types of Drug Sentence Enhancements in Texas
Prior offenses are not the only factor that courts consider when it comes to drug crime enhancements. Some other conditions that may qualify you for an enhancement in Texas are:
- Use of a weapon during a crime. Often, this might be as simple as being in possession of a weapon.
- If the victim is a minor (not as relevant to drug crime enhancements, but still a potential factor).
- Location-based crime: We'll cover this more below.
Drug-free zones have their origin in the 1970s and the War on Drugs. The idea behind them was to add harsher penalties to drug crimes taking place in areas associated with children. This would deter people from selling drugs to children. However, as an article from The Atlantic points out, these regulations affect the poor disproportionately: “In many states, they have effectively meant harsher penalties for poor people, because drug-free school zones were expanded to include public housing. People in relatively wealthy neighborhoods thus risked one punishment for selling or possessing drugs, while people in relatively poor neighborhoods risked a much harsher penalty. The disparity contributed to racial inequities in sentencing and incarceration. Taxpayers were on the hook for bigger prison bills.”
In fact, drug-free zones expanded to include a wide range of areas where children might be.
What Areas Are Covered?
Drug-free zones include areas such as:
- Youth centers
- All levels of school up through college campuses
- Any premise “owned, rented, or leased by an institution of higher learning.”
- Public swimming pools
- School buses
- Daycare facilities
- Youth sports facilities
In Texas, in general, the drug-free zone is within 1,000 feet of an area that's included on the list above. However, for swimming pools and arcades, that distance becomes being within 300 feet of the facility. If there is an alleged occurrence on a school bus, the possible penalties may incur an enhancement.
In Texas, if you are caught next to a school or an arcade, your charge may be bumped up to the next level. What this means practically speaking, is that if you're charged with possession as a Class B misdemeanor, but it occurs in a drug-free zone, the prosecutor might charge you with a state jail felony.
What are the Exceptions?
Although most states do not have exceptions to the drug-free zone legislation, Texas does. In Texas, three criteria can protect a defendant from an enhanced charge. They are:
- The alleged crime occurred inside of a private residence
- There were no children present within the residence when the alleged crime took place
- The defendant did not make any profit from the crime.
It can be challenging to move within the complexities of these three criteria. A criminal defense attorney with proven experience in criminal defense and a broad and deep understanding of the court system may be able to help you navigate the complexity of a drug-free zone enhancement.
What are the Implications?
The implications of being charged with a drug crime within a drug-free zone are far-reaching and can be severe.
Let's walk through a few examples.
A Class B misdemeanor could be charged punished as a class A misdemeanor. This changes the punishment from “up to 180 days in jail and up to $2000 in fines” to “a minimum of 30 days in jail.”
An offense normally punishable as a Second Degree Felony, could be charged as a First Degree felony, punishable by 5 years to life or 99 years in prison, and a fine not to exceed $10,000.
This is just the tip of the iceberg. Clearly, the sentence enhancement associated with drug-free zones in Texas is harsh and significant.
It's worth remembering that repeat offenders or habitual offenders fall within the three strikes enhancement mentioned above. If you go here there's a great chart that walks through the enhanced sentencing for repeat offenders.
Recent Updates to the Texas Enhancements Code
In 2019, Governor Greg Abbott signed three modifications to legislation regarding sentence enhancements. These house bills received passing votes during the 86th Legislative Session. Two of the modifications addressed parole eligibility (in HB 1279) and you can read more about them here. The third is relevant to drug crime cases, specifically a DWI charge: HB 3582 amended the charge of “DWI with a child passenger.” Remember, intoxication does not just refer to alcohol intoxication. The offense was enhanced to a third-degree felony, if the defendant had a prior conviction of intoxication manslaughter, or if the defendant had two prior convictions of any offense related to the operation of a vehicle while intoxicated.
A Board Certified Attorney Can Help
If you've been arrested and charged with a drug crime, you want to make sure that you have the best in your corner to help you fight for your rights. A Board Certified criminal defense attorney can help you avoid conviction or make the best argument for you so that you can avoid conviction. Drug charges, especially when enhanced, may have harsh penalties that go beyond the crime. Doug Murphy's clients have great things to say about how he’s helped them. Contact us today so we can get started on your case.