Why Do Police Pursue Opioid Crimes?
Law enforcement officials have significant public and political pressure to curb opioid trafficking, distribution, possession, and abuse. The U.S. has an opioid problem of crisis proportions. Public health officials, politicians, and think tanks like the Council on Foreign Relations label the problem as an opioid epidemic, citing an increasing supply of fentanyl and other synthetic opioids flooding the country from China and Mexico. National Public Radio offers this peek into China's online synthetic drug network and how opioids reach U.S. consumers. According to the NPR report, when China ostensibly banned fentanyl production in 2019 under U.S. pressure, Chinese producers brazenly produced and shipped fentanyl analogues and precursor chemicals, quickly getting around the ban. And illegal drug markets foster violent crime. Empirical study shows a relationship between the opioid epidemic and increased homicide rates. Police know we've got an opioid problem. That's why you see aggressive opioid crime enforcement.
How Bad Is the Opioid Crisis?
Police also know that the opioid problem is serious and urgent. The opioid crisis isn't overblown. In fact, the opioid crisis is deep, real, and worsening. National Center for Health Statistics data shows over 93,000 U.S. deaths from drug overdoses in 2020. That staggering figure represents a vast 30% increase in deaths over just one year earlier in 2019. And while those figures count overdose deaths from all drugs, fatal opioid overdoses accounted for 69,710, or about 75%, of those deaths. Three-quarters of all fatal drug overdoses in the U.S. are due to opioid misuse and abuse. U.S. healthcare workers know how serious the opioid problem is and are adopting several measures to curb the problem. But so are the police. Expect aggressive police and prosecutor enforcement against opioid crimes.
What Is an Opioid?
The National Institute on Drug Abuse states that opioids are “are a class of drugs that include the illegal drug heroin, synthetic opioids such as fentanyl, and pain relievers available legally by prescription such as oxycodone (OxyContin®), hydrocodone (Vicodin®), codeine, morphine, and many others.” In short, opioids are pain relievers. Physicians prescribe opioids for severe pain after injury or surgery. When friends hear your physician has prescribed an opioid pain reliever, they will joke that you're on the good stuff. The National Institute on Drug Abuse states that the synthetic opioid fentanyl is similar to morphine but fifty to one-hundred times stronger. The Drug Enforcement Administration (DEA) says fentanyl is eighty to one-hundred times stronger than morphine.
What Are an Opioid's Effects?
The problem with opioids that causes legislatures to criminalize them and prosecutors to charge their illicit use as a crime is not that they are very strong pain relievers. The problem is that they are highly addictive, so much so that some users will sacrifice everything for them, not only their own life but also the lives and welfare of others. The Drug Enforcement Administration (DEA) says that opioids in general and fentanyl specifically can produce an intense, short-term high, including feelings of euphoria. Fentanyl also slows respiration and reduces blood pressure. It tends to relax and sedate, causing drowsiness, dizziness, and confusion. The other problem with fentanyl, besides being highly addictive, is that it is highly dangerous. In its worst effects, fentanyl can cause nausea, vomiting, fainting, seizures, and death. That's another reason why legislatures put opioids on the highest-level drug schedules and penalty groups for prosecuting crimes.
What Are Street Names for Opioids?
Street names for drugs are always changing and can be local in nature. The Drug Enforcement Administration (DEA) currently lists these street names for fentanyl: Apace, China Girl, China Town, China White, Dance Fever, Goodfellas, Great Bear, He-Man, Poison, and Tango & Cash. Other street names can include Friend, Jackpot, and Murder 8. But many users may simply use one of the prescription names such as the cancer pain medication Actiq, the transdermal fentanyl patch Duragesic, or the general anesthetic Sublimaze. Don't be confused, though. Similar substances going by many other names may contain opioids or be an opioid analogue, subject to prosecution for an opioid crime.
What Causes Opioid Addiction and Crime?
To understand opioid crimes, you've got to understand the complex causes of opioid problems. People generally don't just wake up one morning to go commit an opioid crime. Rather, opioid crimes typically occur well into a long series of events and circumstances leading to opioid issues. Opioid abuse and crimes also follow long-developing behavioral patterns. And those events, circumstances, and behavior patterns can have a lot to do with whether, why, and how police investigate and prosecutors charge opioid crimes. The Mayo Clinic lists genetic, psychological, and environmental or social risk factors, including:
- poverty in the defendant's family
- unemployment of the defendant or household providers
- family history of addiction and substance abuse
- personal history of addiction and substance abuse
- the defendant's age, especially if young
- the defendant's history of criminal activity or legal problems
- the defendant's prior DWI arrest or conviction
- the defendant's contact with high substance abuse risk people
- the defendant's contact with high substance abuse risk environments
- the defendant's problems with past employers
- family and friend problems
- the defendant's mental health disorder, especially depression or anxiety
- mental health disorder among family members or friends
- the defendant's risk-taking or thrill-seeking
- the defendant's heavy and long use of tobacco
- the defendant's stressful circumstances
- the defendant's prior drug or alcohol rehabilitation
Why Are Causes Important in Opioid Cases?
Police and prosecutors may want to ignore those causes to focus instead on investigating, charging, and convicting for the opioid crime. But every crime has a human context. And every expert criminal defense attorney knows that context is king in defending an opioid charge. Opioid crimes are unusual in that respect. Yes, opioid trafficking, distribution, possession, and abuse lead to many deaths, making opioid crimes a very serious matter. Yet opioids are also highly addictive, often growing out of sympathetic circumstances like injury, medical treatment, depression or other mental disorders, job loss, and financial problems. The human context behind an opioid charge can affect these important and outcome-determinative case decisions:
- whether the prosecution charges an opioid crime
- what opioid crime the prosecution decides to charge
- what defenses the defendant may have to the charge
- whether the prosecution offers a plea bargain
- what plea bargain the prosecution accepts
- how witnesses will treat the defendant
- how the jury will look at the defendant
- whether a jury convicts on the charged opioid crime
- whether the judge upholds the opioid crime conviction
- what sentence the judge imposes
- whether the appellate court upholds the opioid sentence
How Does Opioid Addiction Develop?
How opioid addiction develops can also play into how police, prosecutors, judges, and defense attorneys address opioid crimes. The Mayo Clinic warns that any opioid use can lead to opioid addiction. The drug is very highly addictive. The Mayo Clinic also warns that no one can predict who will become addicted to an opioid. The drug's addictive properties are peculiar to each individual user. You don't necessarily control it. The opioid may, in effect, control you. The Mayo Clinic explains that the process of addiction is one of moving from comfort or pleasure using the drug, such as relief from injury or surgery pain, to the sense that one cannot do without the drug, whether it provides pleasure or not. In scientific terms, opioids enhance the brain's release of endorphins, which are feel-good transmitters. The brain naturally seeks that feel-good relief, sometimes to the point of committing crimes while destroying healthier behaviors. Prosecutors, judges, and juries know that addiction is, by definition, something difficult to control. Handled properly by skilled defense counsel, that sympathy can influence the outcome of an opioid case.
Does Opioid Use Increase the Likelihood of Crime?
Yes. A nationwide study recently showed the relationship between opioid use and the likelihood of facing criminal charges. Any use of opioids, not just their trafficking or distribution, increases the probability of facing criminal charges. Any opioid use also increases the likelihood of having other physical and mental health conditions and co-occurring substance use. The study's key findings were that “[i]nvolvement in the criminal justice system increased with the intensity of opioid use, and any level of opioid use was significantly associated with involvement in the criminal justice system in the past year.” If you are facing an opioid charge, then you should know that you are not alone. Police are investigating, and prosecutors are charging lots of opioid crimes.
Are Federal Agencies Involved in Opioid Enforcement?
Yes, a whole lot of them. The U.S. Department of Justice places a Consumer Protection Branch at the front lines of the opioid fight. The Consumer Protection Branch is part of the Department's expert Prescription Interdiction and Litigation Task Force. That Task Force uses the federal Controlled Substances Act to pursue federal criminal charges and civil actions against both entities and individuals in the opioid supply chain. The Task Force coordinates opioid enforcement initiatives with the Drug Enforcement Administration (DEA) and Food and Drug Administration (FDA). At the trafficking level of opioid crimes, you should expect federal interest. State and local opioid enforcement may draw on federal support.
Does the Post Office Also Investigate Opioid Crime?
Yes. The U.S. Postal Inspection Service has its own opioid enforcement initiative. The Post Office knows that a lot of opioid and other drug trafficking occurs through the U.S. mail. Federal postal inspectors protect Post Office property and personnel. Yet, they also work closely with state and local police to detect and interdict opioid shipments and charge opioid crimes. The U.S. Postal Inspection Service made 2,221 drug trafficking arrests in 2020, seizing 124,000 pounds of illegal narcotics. The Service made nearly one-thousand opioid seizures from 2017 to 2019, recovering 592 pounds of opioids. Those numbers have likely increased with the pandemic's increase in opioid purchases, shipments, abuse, and deaths. The Postal Inspection Service has also implemented a Cyber and Analytics Group to use sophisticated technology to predict opioid shipment patterns, boosting seizure and arrest rates even as traffickers use their own more sophisticated means. The Post Office is heavily involved in opioid enforcement initiatives.
What Opioid Enforcement Initiatives Are Police Using?
According to the U.S. Department of Justice, every available means. Opioid enforcement initiatives have a lot to do with the large number of opioid crimes prosecutors are charging. Those enforcement initiatives begin at the federal level. The U.S. Postal Inspection Service, for instance, has begun using real-time intelligence, accelerated interceptions, advanced electronic data, rapid substance identification, and other state-of-the-art forensics to detect opioid trafficking. A national Police Assisted Addiction and Recovery Initiative trains police nationwide to combat opioid trafficking and distribution. Enforcement initiatives are not all criminal in nature. The Texas legislature strengthened the state medical board's ability to monitor and discipline opioid prescription abuses. The Texas attorney general sued pharmaceutical manufacturers and consultants for deceptive marketing and trade practices. The Texas Targeted Opioid Response Program has worked to raise opioid awareness and combat addiction. But state and local police are in on these Texas opioid prevention initiatives, able to track prescription patterns and identify opioid-seeking behaviors. The Narcotics Division of Houston's police department created several specialized squads on pharmaceutical diversion, money laundering, intelligence, and targeted enforcement, to combat the opioid epidemic. Expect federal, state, and local investigation of opioid crimes and enforcement of opioid crime laws.
What Texas Law Makes Opioids Illegal?
Texas Health & Safety Code §481.102 lists several fentanyl forms or analogues in its Penalty Group 1. Federal law lists controlled substances in Schedules I, II, III, IV, and V. Schedule 1 drugs are generally the most addictive and dangerous and least beneficial, while Schedule V drugs are generally less addictive and dangerous and more beneficial. Federal law classifies fentanyl as a Schedule II drug. The Texas Controlled Substances Act, Texas Health & Safety Code §481.001 et seq., though, reclassifies controlled substances into six similar Penalty Groups, numbering those six groups 1, 1-A, 2, 2-A, 3, and 4, and placing fentanyl in the top (or worst) Penalty Group 1. The fentanyl forms and analogues in Texas's Penalty Group 1 include:
- fentanyl or alpha-methylfentanyl, or any other derivative of fentanyl
Does the Opioid Have to Be Listed to Be Illegal?
Prosecution depends on the substance being listed or a controlled substance analogue of a listed substance. Texas Health and Safety Code § 481.106 provides:
For the purposes of the prosecution of an offense under this subchapter involving the manufacture, delivery, or possession of a controlled substance, Penalty Groups 1, 1-A, 1-B, 2, and 2-A include a controlled substance analogue that: (1) has a chemical structure substantially similar to the chemical structure of a controlled substance listed in the applicable penalty group; or (2) is specifically designed to produce an effect substantially similar to, or greater than, a controlled substance listed in the applicable penalty group.
Texas Health & Safety Code §481.002(6) defines a controlled substance analogue as “a substance with a chemical structure substantially similar to the chemical structure of a controlled substance in Schedule I or II or Penalty Group 1, 1-A, 1-B, 2, or 2-A; or … a substance specifically designed to produce an effect substantially similar to, or greater than, the effect of a controlled substance in Schedule I or II or Penalty Group 1, 1-A, 1-B, 2, or 2-A.” So, if the substance supporting the opioid charge was listed or an analogue of a listed substance, the prosecution has a basis for the opioid charge.
What Are the Categories of Opioid Crimes?
Under the Texas Controlled Substances Act, Texas Health & Safety Code §481.001 et seq., and similar federal law, opioid crimes fall into three general categories: (1) possession; (2) distribution; and (3) trafficking. Each category is a more serious crime, from possession to distribution to trafficking, each category having more serious penalties. The goals of the criminal justice system include deterrence, punishment, and rehabilitation. The Texas legislature plainly prefers to punish those who merely possess and abuse opioids more lightly and rehabilitate them more quickly than those who distribute them illegally for use by others. And Congress and the Texas legislature clearly want to deter and punish trafficking, occurring at the higher levels of manufacture and distribution, more severely.
What Is the Possession Form of Opioid Crime?
Texas Health & Safety Code §§481.115 through 481.118 defines the possession category as knowingly or intentionally possessing Penalty Group substances without a valid prescription from a professional licensed to practice medicine. Health & Safety Code §481.002(38) defines possession as “actual care, custody, control, or management.” Notice the necessary state of mind. The defendant must know or intend the unlawful possession. If police find opioids on or about the defendant's person, such as in the defendant's backpack, purse, or vehicle, but the defendant did not know or intend to possess them, then the defendant has not committed the possession crime. But possession does not require that the defendant have the drugs on or about the defendant's person. Controlling or managing the drugs while in another's possession will also do.
What Is the Distribution Form of Opioid Crime?
Texas Health and Safety Code § 481.002(14) defines the distribution category as to deliver a controlled substance other than by administering or dispensing the substance. Texas Health and Safety Code § 481.002(8) then further defines deliver as actually or constructively transferring to another, or offering to sell, a controlled substance. Putting the two terms distribute and deliver together, the distribution form of opioid crime involves transferring to or offering to sell illegal opioids other than by lawful administration or prescription. The defendant doesn't have to make a transaction involving cash or equivalents. Simply letting another person have some of one's own opioids can constitute distribution. Don't give opioids or other drugs to others, even innocently. You might be distributing.
What Is the Trafficking Form of Opioid Crime?
The drug trafficking category of opioid crimes falls under a patchwork of state and federal laws. Trafficking generally means the manufacture, movement, or transportation of controlled substances for illegal sale or distribution. The federal drug-trafficking statute 21 USC §481 defines the trafficking crime as “for any person knowingly or intentionally (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.” Texas Health & Safety Code §481.112-113 defines the crime as knowingly manufacturing, delivering, or possessing with intent to deliver a controlled substance in Penalty Groups 1, 1-A, 2, or 2-A. Distribution and trafficking can overlap and otherwise look a lot alike. Trafficking charges can arise against persons who are not necessarily involved in opioid manufacture and sale. Prosecutors tend to reserve trafficking charges, though, for defendants more deeply involved in opioid manufacture, distribution, and sale.
What Are the Levels of Opioid Crimes?
Just as opioid crimes grow more serious depending on the category of possession, distribution, or trafficking, opioid crimes also grow more serious as the quantities of opioids involved in the crime increase. How serious a charge you face, and how serious are the associated penalties, depends on how much opioid the police discover. Generally, the more opioids, the worse the charge and penalty. The fewer opioids, the better. The Texas Controlled Substances Act, Texas Health & Safety Code §481.001 et seq., divides the levels and amounts as follows, assigning different charges and penalties depending on the category of possession, distribution, or trafficking:
- less than one gram
- one to four grams
- four to two hundred grams
- two hundred to four-hundred grams
- four-hundred grams or more
What Are Texas Charges for Opioid Crimes?
The opioid charge depends on both the amount and category. If the category is only possession, then less than one gram is a state jail felony, one to four grams is a third-degree felony, four to two-hundred grams is a second-degree felony, two hundred to four hundred grams is a first-degree felony, and four hundred grams or more is an enhanced first-degree felony. If the category is distribution, then less than one gram is a state jail felony, one to four grams is a second-degree felony, four to two hundred grams is a first-degree felony, and two hundred or more grams is an enhanced first-degree felony. Texas law treats the trafficking category similarly to distributing, although trafficking may also implicate federal charges.
What Are Texas Penalties for Opioid Crimes?
Texas Penal Code §12.01 et seq. classifies offenses and assigns their penalties. A state jail felony, which would involve possession, distribution, or trafficking of less than one opioid gram, warrants up to two years in jail and up to a $10,000 fine. A third-degree felony, which would involve possession of one to four opioid grams, warrants a two- to ten-year prison term and up to a $10,000 fine. A second-degree felony, which would involve possession of four to two hundred grams or distribution or trafficking of two to four grams, warrants a two- to twenty-year prison term and up to a $10,000 fine. A first-degree felony, which involves possession of two hundred to four hundred grams or distribution or trafficking of four to two hundred grams, warrants a five- to ninety-nine-year prison term and up to a $10,000 fine. An enhanced first-degree felony, which involves possession of four hundred grams or more or distribution or trafficking of two hundred grams or more, increases the minimum prison term to ten years.
What Are Potential Opioid Crime Enhancements?
Certain circumstances can result in the enhancement of charges or sentences against you. Enhanced charges means more serious penalties and the risk of a much worse outcome. Opioid crimes and their penalties are serious enough without having to face enhanced charges. Texas law enhances drug crimes for things like the involvement of a minor (a person under age eighteen), the use or possession of a weapon during the offense, and whether the opioid caused death or serious injury to another person. Your prior criminal history may also result in enhanced charges or a stiffer sentence.
What Are Defenses to Opioid Crimes?
Texas law recognizes certain affirmative defenses to drug crimes generally and opioid crimes specifically. For instance, if the crime involved a new opioid analogue, Texas Health and Safety Code §481.123 allows the defendant to show that the maker had applied to the Food and Drug Administration (FDA) for the new drug's approval. The same Texas statute also permits the defendant to show that the FDA recognized that the analogue was for investigational use of the kind in which the defendant was engaging. Other potential defenses to opioid crimes include:
- the prosecution lacks evidence on each element of the crime
- the defendant did not know of the drug or intend its possession or control
- the opioid wasn't in the defendant's care, control, or management
- the opioids were not in a federal schedule or Texas penalty group
- the defendant had a valid prescription for the opioids
- police violated the defendant's constitutional rights in search and seizure
- police violated the defendant's Miranda rights
How Can an Expert Attorney Defend Opioid Charges?
An opioid charge is not a conviction. Those charged with opioid crimes can feel helpless and hopeless when what they most need is hope in defeating false, unfair, or exaggerated charges. An aggressive and effective Texas criminal defense attorney can do any or all of the following:
- ensure you understand and rely on your rights and privileges
- investigate and assert your available affirmative defenses
- obtain police and prosecution evidence for evaluation
- appear in court to advocate on your behalf for all your interests
- communicate on your behalf with police, prosecutors, and the court
- ensure that you appear at arraignment, hearings, and trial as required
- advocate for the dismissal of false, unsupported, and exaggerated charges
- seek diversion and dismissal of charges in favor of rehabilitation
- negotiate plea bargains and deferred sentencing
- file pretrial motions to bar inadmissible and prejudicial evidence
- identify, prepare, and call witnesses for direct examination
- cross-examine prosecution witnesses and challenge prosecution evidence
- appeal adverse rulings to ensure a fair proceeding and strong defense
What Should I Do When Facing Opioid Charges?
Above all, you should rely on your privilege against self-incrimination, your right to remain silent, and your right to retain an expert criminal defense attorney of your own choosing. Do not attempt to resolve an opioid crime investigation on your own. You will only incriminate yourself. Instead, promptly retain expert defense counsel to advise you on what to do, help you discern your legitimate objectives and best strategies to achieve them, and handle the matter for you.
Expert Texas Criminal Defense Is Available
If you or a loved one faces opioid charges, then know that one can do no better than to promptly retain the best available defense representation. Texas criminal defense attorney Doug Murphy is available for your expert representation. Attorney Doug Murphy's representation can make the difference for defendants charged with opioid crimes because attorney Murphy has extraordinary knowledge and skills that other lawyers recognize and value. He lectures frequently nationwide, teaching other lawyers criminal defense skills. Attorney Murphy's premier skills and long expertise can help you discern, raise, and prevail on evidentiary, substantive, procedural, technical, and forensic defenses. Attorney Murphy knows the drug laws inside and out, including the ever-developing laws of opioid crimes.
Trust premier Texas criminal defense attorney Doug Murphy, whose fellow lawyers voted him Best Lawyers in America 2021 Lawyer of The Year. Attorney Murphy is available to answer your questions about Texas or federal opioid charges. Attorney Murphy has rare qualifications and skills. He is one of only two Texas lawyers holding both Criminal Law Certification and DWI Board Certification. Texas criminal defense attorney Doug Murphy can be your answer for a successful defense of opioid charges. Contact Doug Murphy Law Firm online or at (713) 229-8333 to discuss your case today.