Arrests for possession of controlled substances (PCS) are one of the most common types of arrests in the Houston area. The most common PCS charges involve possession of marijuana, cocaine, methamphetamine and crack cocaine. However, law enforcement also regularly arrests people for the possession of PCP, ecstasy, magic mushrooms and other substances.
While most marijuana cases are filed as misdemeanors, the possession of cocaine, methamphetamine, ecstasy and most other substances is filed as a felony, regardless of the amount. The Texas Health and Safety code classifies illegal drugs into “penalty groups.” For example, under Texas Health and Safety Code 481.102(D) cocaine is considered a Penalty Group I substance, which makes possession of less than one gram a State Jail Felony, punishable by up to 2 years in State Jail.
Whatever substance you are alleged to have possessed, it is very important to do whatever you can to protect your freedom and your record. The goal of a PCS case should always be to get the charges dismissed. If you are found guilty of PCS, then a conviction will likely stay on your record forever, which could impact your life and career in ways that are difficult to fully anticipate.
In general, there are two ways to keep a PCS charge off your record – by challenging the facts or by obtaining a dismissal through some form of pre-trial diversion.
Challenging the facts of PCS a case involves establishing that a controlled substance found was not knowingly possessed by a defendant, or that the police violated the rights of a defendant and that as a result, a substance should not be permitted in court. Additionally, a defense attorney can also challenge a PCS case based on chain of custody and the reliability of any laboratory analysis that was done.
Being able to identify and effectively challenge factual issues with a PCS case requires a criminal attorney with experience handling drug cases, as PCS cases almost always involve an area of law known as search and seizure law (which is the law that controls whether a detention, search or confession was legal) , or issues relating to technical scientific analysis. Challenging the knowing possession of a controlled substance requires that a criminal defense attorney prove that a defendant was unaware that a controlled substance was in his possession.
Of course, challenging the facts of a case requires that a criminal defense attorney obtain all of the evidence in a PCS case. In a typical PCS case, that includes police reports, videos, search warrants, witness statements, laboratory reports, and the underlying documents from the lab showing how a test was conducted and whether a chain of custody was established. In the Houston area, obtaining the evidence can take 6 months or more, but it is critical that a criminal defense attorney obtain everything in the case to be able to effectively challenge the case.
The reality is that most PCS cases do not contain factual issues that will lead to the dismissal of the case. If a case is not dismissed because of a factual defect, then sometimes it is possible to obtain a dismissal through a pre-trial diversion. A pre-trial diversion is essentially a contract with the District Attorney’s Office that a case will be dismissed if certain conditions are met. Typically, to be eligible for a pre-trial diversion, a defendant should have no or minimal criminal history, and be accused of possessing only a personal use amount of a controlled substance.
A pre-trial diversion is somewhat similar to probation, except for the important fact that the case will be dismissed if all of the requirements are successfully completed. Because a pre-trial diversion in a PCS can require a lot of conditions (like community service, drug counseling and random drug testing), and even a confession from a defendant, it is much better to obtain a dismissal because of a factual defect with the case, whenever possible. However, for many defendants who want a guaranteed way of keeping a PCS case off of their record, a pre-trial diversion is usually a good backup plan.
The availability of a pre-trial diversion in a PCS case and the requirements vary from county to county. In Harris County, for example, many defendants who are alleged to have possessed a small amount of a controlled substance are automatically assigned to a special court where nearly every defendant is offered a pre-trial diversion. On the other hand, in a more conservative county, like Montgomery County, a pre-trial diversion in a PCS is more difficult to obtain.
In a PCS case, the goal of a criminal defense attorney should be to be as thorough as possible in defending the case in order to maximize a defendant’s chance at obtaining a dismissal. If a PCS case is dismissed, or if you are found “not guilty” at trial, then you will be eligible to have records of your case expunged. In a PCS case, an expunction is the best possible result as an expunction results in records of the arrest being destroyed. If your PCS case is expunged, you can even deny the existence of the arrest in most cases, so it is literally as if the incident never took place.
Attorney Jose Ceja is a former drug prosecutor who has handled thousands of drug cases in his career, from small possession cases to cases involving thousands of pounds of controlled substances. If you are charged with PCS anywhere in the Greater Houston area, call Ceja Law Firm today for a free consultation.