Few situations exist where a person can face tremendous penalties as quickly as in a drug case. By
contrast, a person would have to steal more than $200,000 dollars to face a 1st Degree punishment v.
possession of $2,000 of Cocaine gets them to the same 1st Degree range.
How do I find the punishment ranges for cocaine, methamphetamine, heroin?
First, all drugs in Texas have been assigned specific “Penalty Groups”. Penalty Groups range
from Penalty Group 1 – 4. The “worst” drugs are Penalty Group 1, and flow down the scale to
What Drugs are in Penalty Group 1?
For a complete list, click here and scroll to “Subchapter D”
Penalty Group 1
|Less than one gram
|State jail felony
|180 days to 2 years in a state jail and/or a fine of not more than $10,000
|1 gram or more, less than 4 grams
|2-10 years in a state prison and/or a fine of not more than $10,000
|4 grams or more, but less than 200 grams
|2 to 20 years in a state prison and/or a fine of not more than $10,000
|200 grams or more, but less than 400 grams
|5 to 99 years in a state prison and/or a fine of not more than $10,000
|400 grams or more
|Enhanced First-degree felony
|10 to 99 years in a state prison and/or a fine of not more than $100,000
How do I fight a drug case?
While every case is different, nearly every case involves challenging the government’s version of
the facts. The Police and Prosecutors version of the facts will often slant to support a law
enforcement bias, eg: the charged crime is the correct crime. Law enforcement in many ways
exists in a self-fulfilling cycle of believing that if someone got charged they are probably guilty.
The first step is developing and presenting both sides of the story.
Also, we are going to fight the case on the basis of the law. Nearly all drug cases involve a police
search and a police seizure. Any search or seizure will require a 4th Amendment analysis. For
example, a traffic stop of a car is seizure. If the police get into the car and rummage around,
that is a search. In that scenario, first we will address the traffic stop. We must look at what the
law requires and then see if the requirements were met. If the legal requirements were not
met, the remedy may be suppression of the evidence, suppression of the traffic stop and/ or a
dismissal of charges.
An example analysis would go something like this:
(1) The original traffic stop was based on sufficient legal justification.
The Officer’s act of stopping your vehicle must be supported by “Reasonable Suspicion”.
Reasonable Suspicion has a very detailed and specific definition. Not all police stops are based
on reasonable suspicion. For example, did you know that Reasonable Suspicion does NOT exist
if the only fact given is that a driver was ‘weaving within their lane’? Knowing this, ask yourself,
why did the Officer pull you over?
(2) The detention that occurred after the stop was “reasonable”.
An Officer’s actions in detaining a person after a traffic stop must be “reasonable”. Generally,
the detention becomes unreasonable when the Officer keeps a person detained for too long, or
moves them too far from the original stop location. An unreasonable detention is also referred
to by the Courts as an Illegal Detention. The remedy for an illegal detention is a suppression of
evidence obtained after the time of the illegal detention or a dismissal of the Prosecutor’s case.
(3) The search was “reasonable”.
The 4th Amendment requires that a search be “reasonable”. A search is unreasonable unless it
is conducted pursuant to a search warrant, or with a valid exception to the warrant
requirement. If there was a warrant in your case, learn more about fighting a warrant by
clicking here. ← [link to CRIMINAL LAW page]
(4) What are valid exceptions to the warrant requirement?
(1) Search incident to arrest
(4) Automobiles, where Officer has developed Probable Cause
(5) Community Caretaking
(6) Plain View
The above list is not exhaustive, but provides the most common exceptions allowing an Officer
to conduct a search without a warrant. Each one of these exceptions has generated much,
much caselaw and commentary. Each exception has specific requirements that must be
followed. For example, #3 Inventory exception, which is a search of a vehicle that is conducted
after the driver has been arrested, but before the car is towed. Often, Police Officers arrest a
driver for a traffic violation and then will search the vehicle pursuant to an “Inventory” search
prior to towing. It is in these inventory searches that any contraband in the car will be found
and the occupant(s) charged with the associated crime. But the law requires that (1) the Police
Agency has a departmental inventory policy and (2) the inventory done in the case follows that
policy. So, if the search in your case was an “Inventory” search, it is a bad/ inadmissible search
unless there is (1) a departmental policy and (2) it was followed in your case.
(5) What is “Reasonable Suspicion”?
Reasonable Suspicion is more than a hunch, but less than proof of wrongdoing by a
preponderance of the evidence. An Officer may temporarily detain a Citizen on the basis of
reasonable suspicion. An Officer stopping a Citizen based on reasonable suspicion must:
(1) provide specific and objective facts for suspecting a Citizen was engaged in criminal
(2) articulate reasonable inferences from those facts when testifying that show:
(1) some activity out of the ordinary was occurring, and
(2) the Citizen detained is connected with that activity, and
(3) the suspicious activity is related to the crime.
**note: The Court may only rely on the facts known to the Officer at the time of
the stop, NOT facts that were learned after or during the stop.
(6) What is “Probable Cause”?
Probable Cause defined: “Probable Cause exists when facts and circumstances within the
officer’s knowledge, and about which the officer had reasonable trustworthy information, cause
a person of reasonable caution to believe an offense has been or is being committed.”
Commonly the standard applied is: was there evidence that the crime was probably happening?
An example of Probable Cause to search a car without a warrant would be seeing white powder
residue on the console. If an Officer pulls over a car for speeding, and when talking to the
driver sees white powder residue on the console, the Officer can then remove the occupants
from the vehicle, put them in handcuffs and search the car for cocaine without getting a
warrant. The exception to the warrant requirement here is the “Automobile exception” (listed
as #4 above). This type of search becomes an issue when the Officer thinks he has probable
cause to search a car, when he really doesn’t (ex: the Officer sees the top of a plastic baggie
sticking out from the lid of the console – a search based solely on that fact would be an illegal
(7) Evidence gathered by the Officer at the scene is admissible in Court.
Once an Officer has developed “Probable Cause” to make an arrest, there are many, many legal
hoops the Officer must jump through in order to ensure the rights of the Citizen accused are not
violated. If the Citizen’s rights are violated, some or all of the evidence obtained after that point
may not be admissible in Court.
For example, immediately following the time of arrest, the Citizen’s responses to an Officer’s
questions are not admissible in Court unless (1) all of the proper warnings were given, and (2)
the warnings were video or audio recorded, and (3) the Citizen accused specifically
acknowledged and waived those rights. So, if the Officer in your case asked you whether the
drugs were yours.. AFTER he put you in handcuffs and told you that you were under arrest, the
answer you gave would NOT be admissible before the jury. To learn more click here.