Texas has some of the harshest penalties in the nation for drug possession. If convicted, you could face years in prison and hefty fines for even small amounts of controlled substances. Moreover, you will be left with a criminal record that can come back to haunt you for the rest of your life.
However, not all drug possession charges lead to a conviction. In fact, most do not.
To successfully convict a defendant of drug possession in Texas, the prosecution must prove beyond a reasonable doubt that the defendant knowingly possessed an illegal substance intended for consumption. Therefore, most defenses focus upon whether the defendant was knowingly in possession, whether the evidence attained is admissible in court, and whether the substance was possessed illegally.
Unlawful Search and Seizure
Under the US Constitution’s Fourth Amendment, citizens are guaranteed the right to due process of law, including lawful search and seizure procedures. Law enforcement often uses questionable methods during drug investigations and arrests, so search and seizure violations are common in drug possession cases.
If the substance in question is in plain view (for example, discovered on a car dashboard during a legal traffic stop), it can be seized and used as evidence for possession. However, if the officer conducts a search without probable cause or consent to search, any concealed drugs found during the search are not admissible as evidence.
Because the substance in question is the primary evidence of possession, the charges are ordinarily dismissed if the defendant’s Fourth Amendment rights were violated during the search and seizure of the substance.
To attain a successful drug possession conviction, the prosecution must prove that the defendant was knowingly in possession of the substance.
In the case of unwitting possession, the defendant was in possession of the substance, but was unaware of the possession. For example, if a third party mails a drug-containing package with a messenger service, the messengers cannot be held liable for drug possession.
Unknowing possession is also a common defense in constructive possession cases, in which drugs are discovered in the defendant’s residence, workplace, or vehicle. For example, a guest could have left drugs in these locations without informing the defendant, meaning that the defendant was left unwittingly in possession.
Lack of Possession
Lack of possession is also a common defense against constructive possession charges. This defense is appropriate when it cannot be proven that the substance belongs to the defendant, or that the defendant had control over its presence.
For example, if the defendant shares his or her residence with other occupants, any drugs found in the residence may belong to other occupants unless the prosecution provides further evidence.
Drug offenses are often caught in sting operations conducted by undercover law enforcement officers. These operations are legal only so long as they do not provoke the defendant to commit a crime he or she would not otherwise commit. For example, if the officer compels the defendant to pass drugs to a third party, this could be entrapment.
If you are facing drug possession charges, consult a Texas drug lawyer immediately. A skilled attorney can make sure that your rights are protected, and may even be able to get your case thrown out entirely. In the event that your case goes to trial, he or she can build the best possible defense, maximizing your chance of a favorable outcome.
Do not delay. Reach out to our office today.
About the Author:
Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU, and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth, making sure they receive the strongest possible defense when they find themselves on the wrong side of the law. He has been recognized for his work by The National Trial Lawyers, Fort Worth Magazine, and others.