Drug Defense – State and Federal

Possession of a drug, or as the Government refers to it – a controlled substance – is defined as “care, custody or control or management or care…” The drug may be illegal per se, such as cocaine, crack, methamphetamine, heroin, LSD, or marijuana.  Controlled substances also include “legal” drugs, i.e. dispensed by a legal prescription and utilized in a legal manner. The Government must establish that you knew it was contraband.  If the charge is for possession of Marijuana – the Government must prove it was a “usable amount”.  Further, the Government must allege or state the name of the dangerous drug possessed.

Whatever the Government alleges it must prove.  The allegation, contained on document called the charging instrument, must meet certain requirements.  A knowledgeable and experienced litigator can help expose critical shortcomings.

How does the Government go about proving possession?  It must establish what are known as affirmative links (facts or circumstances that raise a reasonable inference that the defendant knew of contraband and exercised control – was paraphernalia discovered).  Possession does not mean the contraband must be located in a person’s actual (physical) possession.  It may be “constructive” possession – the knowing right to care, custody or control.  More than one person can be charged with possession, i.e. joint possession (or, being a “party” to the offense) Knowing that contraband is present – without control or management – is not sufficient for a conviction. This does not mean that proximity is irrelevant, only that it is insufficient alone and additional facts or links are required.  Drug Possession offenses most often boil down to 1) was there even a search, 2) search and seizure issues, i.e., was the Government lawfully placed to conduct the search 2) was the seizure lawful.  If that is lawfully established – then the next question is the sufficiency of the evidence to establish possession.

Mere presence of a controlled substance in a person’s body does not prove possession –but it may furnish an affirmative link.

Possession in a motor vehicle involves the same principles.  However, under both the Texas and US Constitutions, individual’s expectations of privacy are lessened when compared to one’s home.  Search and Seizure Law (4th Amendment law) all revolves around that concept of expectations of privacy.  

There are numerous special evidence rules that are involved in drug cases.  They differ, depending upon whether the Federal Government or the State of Texas is the prosecuting agency.  For example, if a snitch or confidential informant is used.

The punishment for drug offenses depends upon the type of drug; the weight and amount (including substances added or mixed i.e. adulterants and dilutants); was the possession simple or was it with the intent to distribute (manufacturing or trafficking); the location (drug free zones); whether weapons were involved; and the prior record of the accused.  In the federal system, these offenses carry “mandatory minimum” sentences. In the state, sentences can include life in prison.

If accused by either the State of Texas or the United States Government, you are going up against giant prosecuting machines that have everything tilted in their favor.  You need as your champions, advocates experienced as former prosecutors, experienced trial lawyers – successful in both systems, and recognized as Board Certified Criminal Law Practitioners – Call the attorneys at Del Prado Law