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Prescription Drug Arrests

Board Certified Criminal Defense Specialist

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Prescription drug cases are becoming more and more frequent in Texas, mostly because prescription drug abuse has become a hot topic in the legislature and the media. The consequence of stepped up law enforcement efforts are big increases in the numbers of people arrested and charged that have a legitimate defense to a prescription drug case.

Are prescription drugs treated differently than non-prescription drugs?

No. Nearly all known drugs are assigned a “Penalty Group” found in the Texas Controlled Substances Act. Penalty Groups range from Penalty Group 1 – 4. The “worst” (those deemed most likely for abuse and addiction) drugs are Penalty Group 1, and flow down the scale to group 4.

How can a person be charged in a Prescription Drug case?

Typically, Prescription Drug cases are either charged as (1) unlawful possession, (2) possession with intent to sell/ distribute, or (3) Prescription Drug Fraud.

What is Prescription Drug Fraud?

Simply stated, Prescription Drug Fraud can be charged any number of ways, the most common being (1) a completely forged prescription was used to obtain drugs, (2) issuing of prescription medications without proper authority to do so, (3) altering a prescription to change substance or increase quantity.

What is the punishment for a Prescription drug case?

It depends. The two main factors to consider are (1) the Penalty Group, and (2) the quantity.

Where do I find the penalty group assigned to a prescription drug?

The Texas Controlled Substances Act lists all drugs and their corresponding penalty group. To see a complete copy of the Act, click here.

Once I know the assigned Penalty Group, how do I find out the punishment range?

See the below chart. You will need to compare the Penalty Group of the drug in your case, to the quantity listed on the chart. This will give your baseline punishment range. This range may increase depending on the circumstances (eg: location, evidence of intent to sell, etc).

Penalty Group 1

WeightClassificationPenality
Less than one gramState jail felony180 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 gramsThird-degree felony2-10 years in a state prison and/or a fine of not more than $10,000
4 grams or more, but less than 200 gramsSecond-degree felony2 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 gramsFirst-degree felony5 to 99 years in a state prison and/or a fine of not more than $10,000
400 grams or moreEnhanced First-degree felony10 to 99 years in a state prison and/or a fine of not more than $100,000

Penalty Group 1A

AmountClassificationPenality
Fewer than 20 unitsState jail felony180 days to 2 years in a state jail and/or a fine of not more than $10,000
20 or more units, but less than 80 unitsThird-degree felony2-10 years in a state prison and/or a fine of not more than $10,000
80 units or more, but less than 4,000 unitsSecond-degree felony2 to 20 years in a state prison and/or a fine of not more than $10,000
4,000 units or more, but less than 8,000 unitsFirst-degree felony5 to 99 years in a state prison and/or a fine of not more than $10,000
8,000 units or moreEnhanced First-degree felony10 to 99 years in a state prison and/or a fine of not more than $100,000

Penalty Group 2

AmountClassificationPenality
Less than one gramState jail felony180 days to 2 years in a state jail and/or a fine of not more than $10,000
More than 1 gram, less than 4 gramsThird-degree felony2-10 years in a state prison and/or a fine of not more than $10,000
More than 4 grams, less than 400 gramsSecond-degree felony2 to 20 years in a state prison and/or a fine of not more than $10,000
400 grams or moreFirst-degree felony5 to 99 years in a state prison and/or a fine of not more than $10,000

Penalty Group 3 and 4

AmountClassificationPenality
Less than 28 gramsClass A misdemeanorNot more than 1 year in a county jail and/or a fine of not more than $4,000
28 grams or more, but less than 200 gramsThird-degree felony2-10 years in a state prison and/or a fine of not more than $10,000
200 grams or more, but less than 400 gramsSecond-degree felony2 to 20 years in a state prison and/or a fine of not more than $10,000
400 grams or moreEnhanced First-degree felony5 to 99 years in a state prison and/or a fine of not more than $50,000

How do I fight a prescription drug case?

While every case is different, nearly every case involves challenging the government’s version of the facts. The Police and Prosecutor’s version of the facts will almost always 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/ hypothetical 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 for an intoxicated driving case 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.

(4) What are the most common ‘valid exceptions to the warrant requirement’?

     (1) Search incident to arrest

     (2) Consent

     (3) Inventory

     (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. However, 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 actually 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 activity, and

     (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 (eg: pursuant to the “Automobile exception”) would be the presence of marijuana stems in the driver’s lap. If an Officer pulls over a car for speeding, and when talking to the driver sees marijuana stems on the driver’s lap, that Officer can then remove the occupants from the vehicle, put them in handcuffs and search the car for marijuana without getting a warrant. The exception to the warrant requirement in this example is the “Automobile exception” (listed as #4 above).

(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, unless 1-3 above were completed, and completed correctly. To learn more click here.