Frequently Asked Questions
What are some of the common defenses used for drug crime cases?
The most common argument that criminal defense attorneys use in drug case is that the evidence was illegally obtained by police. This is usually a violation of your Fourth Amendment rights, which state that the state cannot conduct unreasonable searches and seizures. Either your consent or a search warrant based on probable cause is required for police to legally search your home or car. If an officer asks to search your home or car and does not have a warrant, you have the right to refuse. Another common defense is unlawful self-incrimination, which is a violation of the Fifth Amendment.
If either violation has occurred, the unlawfully-obtained evidence will be suppressed and cannot be used against you. This makes it much more difficult to prove guilt beyond reasonable doubt.
What is drug court? How is it different from a normal criminal court?
Drug crimes are often committed by drug users and drug addicts, who need specialized treatment and rehabilitation that prison cannot offer. Drug courts take this into account and, especially for first time offenders, will require mandatory drug treatment in lieu of jail time. Sometimes, rehabilitation can result in the dismissal of your charges.
What is forfeiture and how does it apply to drug cases?
Forfeiture is the legal seizure of property by the government. Although there are two types of forfeitures, civil and criminal, the majority of forfeitures today are civil. In a civil forfeiture, the government must have a "preponderance of evidence" that the property was or could be used to commit a crime. Assets seized in civil forfeitures related to drug crimes are generally items used for the cultivation or distribution of controlled substances.
What is drug diversion?
Drug diversion is the abuse or misuse of prescription drugs for recreational purposes. This can occur via prescription fraud, stealing prescriptions or drugs, doctor shopping, and illegally ordering drugs through the Internet.
Drug diversion may also refer to a Drug Diversion Program, which can be an alternative to imprisonment for individuals convicted of drug crimes.
I plan to plead guilty. Do I need a defense attorney?
Yes. When you plead guilty to a drug crime, the prosecution does not necessarily go easier on you. You could still be subject to the maximum fines or sentence. A drug crimes defense lawyer can explain your case and may be able to negotiate a lighter sentence. A legal professional can advise you on voluntary treatments as well as personal presentation that may make the court decrease your penalties.
What is a sentencing guideline and how might it affect me?
Sentencing guidelines offer a minimum and maximum standard punishment based on severity of the crime and the defendant's criminal history. They were adopted in an effort to help judges remain consistent. Both state and federal judges are required to at least consider the sentencing guidelines, but they do not have to abide by them. While sometimes these guidelines can mitigate a judge's personal prejudices, they can also nullify the individual circumstances of your case.
How are different types of drugs classified under state law?
All controlled substances are divided into five penalty groups.
- Penalty group 1 contains drugs such as heroin, cocaine, oxycodone, hydrocodone, LSD and methamphetamine.
- Penalty group 2 contains drugs such as hallucinogenic mushrooms (psilocybin), amphetamines, ecstasy, PCP and mescaline.
- Penalty group 3 contains drugs such as peyote, anabolic steroids, Valium, and Xanax.
- Penalty group 4 contains drugs such as Buprenorphine and drugs with small concentrations of codeine.
Marijuana (also spelled marihuana) is not considered a controlled substance in Texas, but it is illegal to possess, distribute, consume, transport, or cultivate.
How are different types of drugs classified under federal law?
All controlled substances are divided into five "schedules."
- Schedule V (5) drugs are generally not considered very dangerous, have low addiction or abuse potential, and is an accepted medical treatment. Cough medicine is a Schedule V drug.
- Schedule IV drugs are considered mildly addictive when abused.
- Schedule III drugs, such as steroids, Vicodin, or ketamine, can be used for medical treatments and can cause moderate physical addiction and high psychological addiction.
- Schedule II drugs are easily abused, are highly addictive, but can be legally prescribed. Cocaine, methamphetamine, and morphine are all Schedule II drugs.
- Schedule I drugs have no accepted medical use and have a high potential for abuse. Some of these substances are heroin, MDMA (ecstasy), peyote, and LSD. Controversially, marijuana is also a Schedule I drug under federal law. Crimes involving Schedule I drugs have extremely harsh penalties, even for a first time offender.
How are probation and parole different?
First time offenders often receive probation instead of prison sentences. Probation means that you get to go back to your life, with certain conditions. These conditions could be regular check-ins with a probation officer, random drug tests, drug treatment, or community service. If you violate your probation or commit another crime, there can be serious consequences. Parole refers to the conditions set when a prisoner is released from jail. The conditions are often similar to probation.
Is there any way I can avoid going to jail?
Yes. Drug courts are often very helpful in avoiding a prison sentence, especially if you are a first time offender or if it is a misdemeanor charge. Often you can trade prison time for drug treatment and rehabilitation; these are called Drug Diversion Programs. Also, probation may be offered instead of jail time. You will need an experienced drug crimes defense attorney to present your case and convince the court that prison is not the best option for you.
What is the difference between a federal crime and a state crime?
A federal crime is an action that violates federal law; a state crime is an action that violates state law. Either can be a misdemeanor or a felony. Federal crimes must be prosecuted in federal courts, and the attorneys must be licensed or permitted to practice in a federal court.