UPDATED 7/23/2021, Original Post: April 19, 2019
When we think of “drugs,” we typically think of two types: controlled substances (illegal drugs like marijuana and cocaine) and prescription drugs.
In the eyes of the law, these two types of drugs are not always so different. There are many scenarios where people can be arrested and charged with a crime even if they are caught with drugs that you can get from a health professional.
Moreover, charges related to prescription drugs can be just as serious as charges related to drugs typically considered more “serious.”
How might you potentially get charged with a crime related to a prescription drug in Texas?
Texas Possession Laws and Prescription Drugs
A handful of prescription drugs double as serious controlled substances. Having these drugs in your possession without the permission of a certified health professional (i.e., a valid prescription) is a drug crime.
The state of Texas separates prescription drugs into different penalty categories. These categories come with different sentencing recommendations.
Without the recommendation of a doctor, you could face serious charges for getting caught with the following prescription drugs:
- Penalty Group I: any type of opiates (including Vicodin, OxyContin, Percocet, Opana, morphine, and fentanyl,) Rohypnol, Methamphetamine
- Penalty Group II: Phenylacetone, amphetamine, Vyvanse, Quaalude
- Penalty Group III: Xanax, Ativan, Klonopin, Ritalin, Preludin, barbiturates, appetite suppressants, miscellaneous anabolic steroids
- Penalty Group IV: any compound with limited amounts of codeine, morphine, difenoxin
These drugs are taken seriously because they come with a high risk for abuse and dependence. Beyond which penalty group a drug is in, charges and penalties will also be determined by the amount that you have on you when you are arrested.
For example, if you are accused of possessing less than one gram of a controlled substance under Penalty Group I (i.e., OxyContin that wasn’t prescribed to you,) you could face state jail felony charges. Penalties for this charge include up to two years in jail and $10,000 in fines.
The same type of charges and penalties apply if you are caught with under 28 grams of a controlled substance in Penalty Group III (i.e., Xanax that was not prescribed to you.)
Manufacture or Delivery of Controlled Substances in Texas
If you have a large amount of prescription drugs in your possession at the time of your arrest, you might face manufacture or delivery charges. These charges are more serious than possession, because they involve an intent to make, sell, or traffic the drugs.
Take the delivery or manufacture of opioids, for example. Possession of between 1-4 grams of fentanyl that was not prescribed to you will result in state jail felony charges with up to two years behind bars as a penalty. However, if you are caught selling the same amount of opioids, you could face between 5-99 years in prison.
That’s right. Ninety-nine years behind bars. If you are not a citizen, you may also face deportation.
These aren’t the only ways that you could be charged for taking or possessing prescription drugs, either.
Doctor Shopping in Texas
The nation is facing a public health crisis. Many patients find themselves growing seriously dependent on painkillers and other types of narcotics after an accident. Between 21-29% of all patients who are prescribed opioids, including fentanyl and Vicodin, misuse these drugs. One of the common practices in this misuse is “doctor shopping,” and it comes with both serious health risks and penalties.
“Doctor shopping” is the process of visiting multiple healthcare professionals to gain higher quantities of prescription drugs. A person who is not satisfied with the amount of drugs they receive from one doctor may “shop” for other doctors who will be willing to provide more prescriptions. Often, people who “doctor shop” will lie about their current pain levels or current prescriptions in order to get the drugs that they want.
This falsification of information is fraud, a crime that is illegal under both Texas state law and federal law. If you are accused of doctor shopping, you may face felony charges and years behind bars.
Defenses against Prescription Drug Charges In Texas
Remember, possession of just one gram of a Penalty I controlled substance could result in two years behind bars. Don’t let an addiction or a misunderstanding put you in jail. If you have been accused of prescription drug charges, call up a skilled Texas defense lawyer and start working on your strategy immediately.
Did You Have A Prescription For The Drug? If you have a prescription and were unlawfully arrested for possession, you should have a good chance of walking away without penalties. You should provide your criminal lawyer proof of your valid prescription and this evidence could allow a grand jury to no bill your case and clear your good name. However, if you were arrested on more serious charges (sale, trafficking, doctor shopping, etc.), a prescription will not do it for your defense.
Did The Prescription Belong To Someone Else? We have seen this happen many times. Maybe you were arrested in possession of your friend or family member’s prescription drugs. Should you be charged? Convicted? Your friend or family member may be able to provide your criminal defense attorney a copy of the prescription and a notarized affidavit stating they left the item in your possession and you had no knowledge of it being present in your vehicle or location. This could provide reasonable doubt for your drug case and give your criminal defense lawyer leverage to negotiate a dismissal.
Did You “Possess” The Prescription Drugs? How did the police find the prescription drugs? Were they located on your person or in a car? If they were in your vehicle, it may be possible to argue that you did not intentionally or knowingly possess the drugs. Under Texas law, the State of Texas must prove beyond a reasonable doubt that you exercised care, custody or control over the prescription drugs. Were they found under a seat? Center console of the car? Under this scenario, even though you may have exercised care, custody or control over the drugs, the prosecutor must still prove that you criminal intent to possess the drugs. Mere presence at the scene where prescription drugs are found does not, by itself, prove that you had intent or knowledge to possess the drugs.
Was The Prescription Drug Search Legal? Did the police have probable cause to search your car or home? Without a valid search warrant, the police must articulate specific facts that establish probable cause for a search. Assuming you did not consent to a search, the police may not have enough evidence to establish probable cause. Your criminal attorney may be able to file a motion to suppress evidence and conduct a hearing to show probable cause did not exist. If this hearing results in a favorable finding, your entire prescription drug case could be thrown out because of the illegal search.
What if these considerations to not apply to your case? There are always other strategies your criminal defense attorney can argue to improve your chances for a favorable outcome. For example, people who are addicted to prescription drugs may be able to go to rehabilitation instead of jail. It makes no sense to sentence someone who has a drug problem to a prison sentence. This argument can resonate with a judge or jury and may help avoid a jail sentence or conviction on your prescription drug case.
Talk to your attorney about these possibilities and how you can fight for a sentence that helps, rather than hurts, you. Every case is different, but the sooner you can start fighting against charges, the easier it will be to get a positive result that gets you back on track.
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.