When you first hear the phrase “dangerous drug,” you might picture in your mind the banned street drugs in the highest drug penalty groups like heroin or cocaine. But in Texas, the phrase dangerous drug has a different meaning. The phrase applies generally to substances that require a prescription to possess but are not classified as a controlled substance under the Texas Health and Safety Code.
Just because a drug isn't a controlled substance doesn't mean you won't face major consequences if you are convicted of possessing it without a prescription. Just like with any serious crime, a conviction for possession of a dangerous drug can have long-lasting effects on your finances, your career, and even your freedom. With so much at stake, it is important that you hire a dangerous drug defense attorney with a proven track record of success. Houston criminal defense attorney Doug Murphy has a long history of obtaining favorable results for his clients. To discuss your options, contact the Doug Murphy Law Firm, P.C. today.
What is possession of a dangerous drug under Texas law?
A dangerous drug is defined by Texas Health and Safety Code Section 483 as 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.
Common dangerous drugs are Valium and Xanax. These dangerous drugs can only be possessed with a valid prescription and can only be dispensed by a pharmacist with a prescription written by a qualified professional. Qualified professionals include:
- Medical practitioners;
- Registered nurses;
- Physician's assistants; or
- Any other practitioner authorized to prescribe under Texas law.
What are the potential penalties for a conviction for possession of a dangerous drug in Houston, TX?
The possession of a dangerous drug without a prescription from a qualified professional described above is a crime under Texas law. If you are convicted, you may face fines and incarceration. Possession of a dangerous drug can be charged as either a misdemeanor or a felony, depending on the circumstances.
Possession of a dangerous drug is a misdemeanor in cases where you are convicted of possessing less than 28 grams of any combination of dangerous drugs. These cases qualify as Class A misdemeanors in Texas. A Class A misdemeanor carries the possibility of up to a year in county jail. Additionally, you could face a maximum fine of no more than $4,000 if convicted. Finally, a conviction may also lead to a suspension of your driver's license for up to six months.
Possession of 28 grams or more of any combination of dangerous drugs is a felony under Texas law. The penalties for a conviction vary depending on the amount of dangerous drugs you are alleged to have been in possession of.
Common Legal Defenses to Dangerous Drug Possession in Texas
There are quite a few valid legal defenses to the charge of possessing a dangerous drug. Some of these relate directly to the drug itself while other defenses center around your constitutional rights. Every case is different; it takes a drug defense attorney with an experienced eye to identify all of the potential issues in each case. Doug Murphy is one of those attorneys. He handles each of his cases personally and carefully reviews each one for a winning defense. It's why his clients point to his attention to detail as one of his strengths. Below are a few common defenses to possession of dangerous drug cases.
The same constitutional grounds that many drug possession defenses are built on also apply when you are charged with possession of a dangerous drug. The Fourth Amendment to the United States Constitution protects you from the unlawful search or seizure of your person or property by the government.
This protection extends to your person, your car, and your home. If your car or home is searched without a warrant or probable cause, any evidence found due to the search may be excluded from being used against you at trial. This can include dangerous drugs found in your possession or even an admission by you that you knowingly possessed the substance without a valid prescription.
Your constitutional rights extend beyond searches; the police can't pull your car over or otherwise seize your property without reasonable suspicion that you have committed a crime. If you are arbitrarily pulled over while driving, any evidence collected during the traffic stop will not be admissible in court.
As mentioned above, dangerous drugs are identified as substances that require a prescription to possess. It goes without saying, then, that if you were in possession of a valid prescription at the time of your arrest, you have a viable defense to a charge of possession of a dangerous drug. It's possible that you could be charged with possession if you are found to be carrying a dangerous drug outside of the container they came in. Officers have no way of knowing if you had a valid prescription if you discarded the bottle the drugs came in.
There are other exceptions to this statute outside of pharmacists, qualified professionals, and people with valid prescriptions. Section 483.041 (c)(3) specifically authorizes the possession of a dangerous drug by a person who obtains a dangerous drug for lawful research, teaching, or testing, but not for resale. This can include researchers in a corporate or academic setting or even a medical school.
Consider the following example:
Jeff is a researcher at a Texas university. The university has a research program related to dangerous drugs, and Jeff is responsible for the testing and research of these substances. It is necessary for Jeff to handle dangerous drugs procured by the university for testing purposes. When he does so, he is not committing possession of a dangerous substance because of the research exception. However, if he were to attempt to sell any of the dangerous drugs he was lawfully possessing, he could face a variety of other charges.
Lack of Knowledge of Possession
For the prosecutor in your case to obtain a conviction for possession of a dangerous drug against you, he or she will have to prove not only that you were in possession of the drug but also that you were in possession it knowingly. In other words, possession is a crime of intent and the prosecutor will be required to show that you had the intention of possessing a dangerous drug.
This defense is helpful if you inadvertently were in possession of a dangerous drug or if you were unaware that the substance you were in possession of was illegal. Consider the following example:
Jeff buys an old suitcase at a flea market. Unbeknownst to him, there is a small bag of dangerous drugs stuffed into a side compartment on the suitcase. On the way home, Jeff is pulled over for speeding. He agrees to let the officer search his new suitcase and is arrested when the officers find the dangerous drugs in his bag. Jeff has a valid defense to the crime given that he was completely unaware that he was in possession of a dangerous drug.
There are additional instances where possession of a dangerous drug is authorized. Any of these examples would act as a valid defense to a charge of possession of a dangerous drug:
- 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.
Hiring the Best Dangerous Drug Defense Attorney in Houston
If you have been charged with possessing a dangerous drug in the Houston, Texas area, contact the Doug Murphy Law Firm, P.C. immediately. Attorney Doug Murphy is an experienced trial attorney that has successfully defended clients throughout the Houston area. He is a Board Certified expert in criminal defense law, which is one of the best indicators of an attorney's skill and experience. In fact, he is one of only two attorneys in the State of Texas to be certified as an expert in both criminal defense law and DWI defense law.
Some attorneys will happily push their clients to simply accept the first plea offer made by the prosecutor. Doug Murphy is not one of those attorneys. He is a board-certified criminal defense trial attorney at heart that approaches every case as if it will go to trial because he knows it is the best means of securing your freedom and future. Contact the Doug Murphy Law Firm, P.C. today for your free consultation.