There is a common misconception among some Texans that certain substances are either “legal drugs” or “illegal drugs.” For some, these terms are used to distinguish between illegal street narcotics like heroin or LSD and medication prescribed by a doctor. Unfortunately, some of those people may learn the hard way that possessing a “legal” drug without a valid prescription can lead to being arrested just as easily as the possession of an illegal narcotic.
In fact, the unlawful possession of certain prescription drugs carries tougher penalties than most recreational drugs. With any drug possession case, a conviction could cost you a lengthy prison stay as well as a large fine. The consequences for a conviction can extend beyond the length of your sentence, however, as a felony conviction can have a life-long impact on your ability to find a job or maintain housing. These consequences are serious, but under the right circumstances, you can avoid a conviction.
The first step is to discuss your case with an experienced Houston drug possession lawyer. Doug Murphy is known as one of the premier defense attorneys in the Houston area and throughout Texas. He has years of experience obtaining favorable results for his clients and can help you understand the charges that have been filed against you. Contact the Doug Murphy Law Firm, P.C. for help.
What is a “legal” drug under Texas law?
To begin, there is no such thing as a “legal” drug under Texas law. In the State of Texas, certain substances are illegal to possess without a valid prescription or legal exemption. Other substances are always illegal to possess. In Texas, the most heavily regulated substances are known as controlled substances. These contain what most people are familiar with as drugs, including narcotics and most prescription medication. Additionally, there are also regulations regarding the possession of other substances that are not controlled substances but still require a prescription from a doctor. These are known as dangerous drugs.
A controlled substance is what most people refer to as a drug. Under Texas law, every controlled substance whose possession is regulated is assigned to one of six drug penalty groups. According to the Texas Controlled Substances Act, any substance that is illegal to possess under federal law is categorized into one of these six groups. The six drug penalty groups are:
- Penalty Group 1
- Penalty Group 1A
- Penalty Group 2
- Penalty Group 2A
- Penalty Group 3
- Penalty Group 4.
The only controlled substance that is not listed in one of these penalty groups is marijuana, which is treated differently under Texas law. Each penalty group has a range of potential penalties with penalty group 1 carrying the stiffest penalties and penalty group 4 carrying the lightest. In general, drugs that are highly addictive or have no medicinal value carry more severe punishment than other drugs.
While dangerous drugs are not controlled substances, the unlawful possession of them can still carry major consequences. So what is a dangerous drug? According to Texas Health and Safety Code Section 483, it is a:
device or a drug that is unsafe for self-medication and that is not included in Schedules I through V or Penalty Groups 1 through 4 of Chapter 481 (Texas Controlled Substances Act). The term includes a device or a drug that bears or is required to bear the legend:
(A) Caution: federal law prohibits dispensing without prescription" or "Rx only" or another legend that complies with federal law; or
(B) Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian.
Dangerous drugs are illegal to possess in the State of Texas without a valid prescription given to you by an authorized professional. Authorized professionals include:
- physician's assistants,
- registered nurses, or
- any medical practitioner authorized to prescribe under Texas law.
What constitutes possession of a controlled substance or dangerous drug in Texas?
Under Texas Penal Code Section 1.07(39), possession is the actual care, custody, control or management of a controlled substance or dangerous drug. This definition may seem broad, but that is by design because the intention of Texas possession laws is to reach beyond those who are caught red-handed with drugs on their person. This definition is broad enough that it isn't necessary for you to be in direct possession of a drug or even in the same room as the substance at the time of the arrest.
For example, you can possess a controlled substance that is in your home even if you aren't there. If you keep a controlled substance locked in a box under your bed that no one else has access to, you are clearly in control of that substance even when you are not in the same room with it. In that scenario, you could be arrested and charged with possession of a controlled substance.
Common Defenses in a Drug Possession Case
Thankfully, there are many valid defenses that can be raised in a Texas drug possession case. When attorney Doug Murphy reviews a file for the first time, he makes note of every potential piece of exculpatory evidence in your case. Each case is different, and his trained eye allows him to pick up details that others may have missed. This detailed approach to defending his clients is one of the reasons they speak so highly of him. Here are just a few of the defenses that may apply in your possession case.
You have certain rights and liberties guaranteed to you by the Constitution of the United States. And if during the course of their investigation law enforcement violates your rights, you may have a valid defense in your case. In possession cases, the right most commonly associated with a defense is the Fourth Amendment protections from unlawful search and seizure.
The police cannot simply search you or pull over your car for no reason. If your person or home is searched without a warrant or probable cause, your rights have been violated. Any evidence seized during the search or discovered due to the violation of your rights cannot be used against you at trial.
Much like with an unlawful search, the police are also barred from pulling your vehicle over for no reason. The officer must have a reasonable suspicion you have committed a traffic violation or other crime. Any evidence that comes from an illegal stop may also not be used against you, including statements you made while in custody.
One of the obvious defenses for a charge of possessing a dangerous drug or certain controlled substances is that you had a valid prescription at the time of the arrest. It is not a defense if you obtained a valid prescription later. Many people find themselves in trouble when they are arrested for possessing a substance they have a valid prescription for but were carrying the drugs in an unmarked container. In these cases, your attorney can often have the charges dismissed if you are able to prove you had a valid prescription at the time.
A valid prescription is not the only circumstance where it is legal to possess dangerous drugs or controlled substances. There are a variety of exceptions for people in the health care industry to possess or transport these substances so long as they have appropriate authorization. Some examples include:
- A manufacturer or wholesaler licensed by the Department of State Health Services;
- A carrier or warehouseman tasked with moving or storing a dangerous drug;
- A licensed midwife who obtains oxygen for administration to a mother or newborn or who obtains a dangerous drug for the administration of prophylaxis to a newborn for the prevention of ophthalmia neonatorum;
- A certified laser hair removal professional; or
- A salvage broker or salvage operator.
Lack of Knowledge of Possession
Possession is a crime of intent. It's not enough that the dangerous drug or controlled substance was in your possession; to be convicted you must have known of the presence of the substance in the first place.
This defense can apply in cases where you aren't aware that the substance in your possession is a controlled substance. It is also used in cases where you didn't know that the substance was in your possession at all. For example, if you picked up the wrong coat from a coat check and, without your knowledge, it contained a controlled substance, you would have a viable lack of knowledge of possession defense.
Discuss your case with a Houston Drug Crimes Attorney
Whether it's a dangerous drug under Texas law or a prescription medication contained in the Texas drug penalty groups, a conviction for illegal possession can be a major setback. That's why it pays to contact a Houston drug crimes attorney immediately after being arrested.
Attorney Doug Murphy has a long track record of obtaining positive outcomes in Houston drug cases. To discuss how he would approach your case, contact the Doug Murphy Law Firm, P.C. today at (713) 229-8333 for your free consultation.