Drug Possession Attorney Houston

Drugs and cash on the dashboard of a car

Every week dozens of people are arrested for possession of a controlled substance throughout the Houston area. In Texas, the possession of controlled substances can be punished harshly and a person arrested could face jail time, fines, and a permanent criminal record. In the Houston area, the most common substances that lead to possession charges are marijuana, opioids, cocaine, methamphetamine, ecstasy/MDMA, and prescription drugs, but there are hundreds of substances that are considered controlled and could subject a person to a misdemeanor or felony charge. 

Drug possession cases are highly specialized and typically involve the search for a person, vehicle or home. In order to maximize your chances of keeping a drug possession charge off of your record, it is crucial to hire an attorney with the background and experience to effectively challenge a drug possession charge. Attorney Jose Ceja is a former felony drug prosecutor who has handled thousands of drug cases in his career and has a proven track record of obtaining excellent results in drug possession cases. 

How is possession of a controlled substance defined in Texas?

Under Texas law, a person commits the offense of possession of a controlled substance by knowingly or intentionally possessing a substance that is defined as a controlled substance under Texas law. The Texas Health and Safety Code categorizes controlled substances into penalty groups with related substances, based on potential for addition and whether the substances have any accepted medical use. A “controlled substance” is defined as any substance listed in penalty group 1, 1-A, 1-B, 2, 2-A, 3 or 4 of the Texas Health and Safety Code. These penalty groups are discussed more fully below. 

The Texas Health and Safety Code defines “possession” to include the care, custody, control or management of a substance. The law only requires knowing or intentional possession. It is not necessary for a person to be the actual owner of a controlled substance, but it is necessary that a person possess a substance knowingly. 

How do penalty groups work in Texas drug possession cases? 

Under Texas law, “controlled substances” refer to substances and compounds specifically listed under one of the seven penalty groups found in the Texas Health and Safety Code. The groups are organized by the class of substance, whether the substances have any accepted medical or scientific use and their potential for abuse or addiction. Each penalty group has its own sentencing statute based on amounts of substances that are possessed. As noted above, the most common charges in the Houston area are based on the possession of THC (Penalty Group 2), cocaine (Penalty Group 1), heroin (Penalty Group 1), methamphetamine (Penalty Group 1) and ecstasy/MDMA (Penalty Group 2).

Penalty Group 1: Under Texas Health and Safety Code 481.102, Penalty Group 1 includes cocaine, methamphetamine, as well as many opiates and related substances, including heroin, codeine, oxycodone, opium, morphine. The possession of any amount of a substance in Penalty Group 1 is a felony. Possession of Penalty Group 1 substances is punished as follows:

  • State jail felony punishable by 180 days to 2 years for possession under 1 gram.
  • Third-degree felony punishable by 2 years to 10 years for possession of one gram to four grams. 
  • Second-degree felony punishable by 2 years to 20 years for possession of four grams to 200 grams. 
  • First-degree felony punishable by 5 years to 99 years for possession of 200 grams to 400 grams. 
  • Enhanced first degree felony punishable by 10 years to life for possession of 400 grams or more. 

Penalty Group 1-A: Under Texas Health and Safety Code 481.1021, Penalty Group 1-A includes LSD and chemically similar compounds as well as certain psychoactive drugs known as phenethylamines. Unlike most drugs, Penalty Group 1-A is not punished by weight, but by “abuse unit” (this is due to the extremely high potency of LSD and other drugs in this penalty group). An abuse unit is defined as a single “unit” (or dose), or quarter inch section of blotter paper (if not perforated), or 40 micrograms of the controlled substance if it is in liquid form. Possession of Penalty Group 1 substances is punished as follows:

  • State jail felony punishable by 180 days to two years for 19 or less abuse units.
  • Third-degree felony punishable by 2-10 years for 20 to 79 abuse units.
  • Second-degree felony punishable by 2-20 years for 80 to 3999 abuse units.
  • First-degree felony punishable by 5-99 years for 4000 to 7999 abuse units.
  • Enhanced first-degree felony punishable by 15-99 years for 8000 or more units.

Penalty Group 1-B: Under Texas Health and Safety Code 481.1022, Penalty Group 1-B includes fentanyl and compounds that are chemically related to fentanyl. Due to increasing concern over fentanyl overdoses, this group was added in 2021. Possession of Penalty Group 1-B substances is punished as follows:

  • State jail felony punishable by 180 days to 2 years for possession under 1 gram.
  • Third-degree felony punishable by 2 years to 10 years for possession of one gram to four grams. 
  • Second-degree felony punishable by 2 years to 20 years for possession of four grams to 200 grams. 
  • First-degree felony punishable by 5 years to 99 years for possession of 200 grams to 400 grams. 
  • Enhanced first degree felony punishable by 10 years to life for possession of 400 grams or more. 

Penalty Group 2: Under Texas Health and Safety Code 481.103, Penalty Group 1-B includes substances containing THC (other than marijuana plant/flower or hemp), PCP, amphetamines (including Adderall) and many psychedelic substances such as mescaline, DMT, 2C-B, psilocybin (including magic mushrooms) and ecstasy/MDMA. Possession of Penalty Group 2 substances is punished as follows:

  • State jail felony punishable by 180 days to 2 years for possession under 1 gram.
  • Third-degree felony punishable by 2 years to 10 years for possession of one gram to four grams. 
  • Second-degree felony punishable by 2 years to 20 years for possession of four grams to 200 grams. 
  • First-degree felony punishable by 5 years to 99 years for possession of 200 grams to 400 grams. 
  • Enhanced first degree felony punishable by 10 years to life for possession of 400 grams or more. 

Penalty Group 2-A: Under Texas Health and Safety Code 481.1031, Penalty Group 2-A includes many synthetic cannabinoids (like “spice” or “K2) as well as some precursors to synthetic cannabinoids. Possession of Penalty Group 2-A substances is punished as follows:

  • Class “B” misdemeanor punishable by up to 180 days in jail for two ounces or less.
  • Class “A” misdemeanor punishable by up to a year in jail for possession of two ounces to four ounces.
  • State jail felony punishable by 180 days to 2 years for possession of four ounces to five pounds.
  • Third-degree felony punishable by 2 years to 10 years for possession of five pounds to 50 pounds. 
  • Second-degree felony punishable by 2 years to 20 years for possession of 50 pounds to 5000 pounds. 
  • First-degree felony punishable by 5 years to 99 years for possession of more than 2000 pounds. 

Penalty Group 3: Under Texas Health and Safety Code 481.104, Penalty Group 3 consists of many drugs which have some accepted medical use, including many pain killers, anti-anxiety medications and tranquilizers. This includes substances like valium (diazepam), Xanax (alprazolam), Ritalin (methylphenidate), Lorazepam (Ativan) as well as many anabolic steroids. Possession of Penalty Group 3 substances is punished as follows:

  • Class “A” misdemeanor punishable by up to a year in jail for possession of less than 28 grams.
  • Third-degree felony punishable by 2 years to 10 years for possession of 28 grams to 200 grams. 
  • Second-degree felony punishable by 2 years to 20 years for possession of 200 grams to 400 grams.
  • First-degree felony punishable by 5 years to 99 years for possession of more than 400 grams.  

Penalty Group 4: Under Texas Health and Safety Code 481.105, Penalty Group 4 includes substances with an accepted medical use that also include a narcotic that “confers valuable medicinal qualities.” This includes cough syrups with smalls amounts of codeine or opium.  Possession of Penalty Group 4 substances is punished as follows:

  • Class “B” misdemeanor punishable by up 180 days in jail for possession of less than 28 grams.
  • Third-degree felony punishable by 2 years to 10 years for possession of 28 grams to 200 grams. 
  • Second-degree felony punishable by 2 years to 20 years for possession of 200 grams to 400 grams.
  • First-degree felony punishable by 5 years to 99 years for possession of more than 400 grams.  

Marijuana and THC Possession – Under Texas law, the possession of marijuana and THC concentrates are treated differently. Marijuana is defined as the plant and every preparation of the plant but does not include extracts or oils made from the plant (like marijuana vapes or edibles), which are punished more harshly under Penalty Group 2. Under Texas Health and Safety Code 481.121 the possession of marijuana plant/flower is punished as follows:  

  • Class “B” misdemeanor punishable by up to 180 days in jail for two ounces or less.
  • Class “A” misdemeanor punishable by up to a year in jail for possession of two ounces to four ounces.
  • State jail felony punishable by 180 days to 2 years for possession of four ounces to five pounds.
  • Third-degree felony punishable by 2 years to 10 years for possession of five pounds to 50 pounds. 
  • Second-degree felony punishable by 2 years to 20 years for possession of 50 pounds to 5000 pounds. 
  • First-degree felony punishable by 5 years to 99 years for possession of more than 2000 pounds.

How A Criminal Defense Attorney Can Help Your Drug Case

In the Houston area, most drug cases are filed as felonies and it is critical to have effective representation at every step of the way, from your first court date to the resolution of your case. Of course, the goal of a drug possession case is to protect your freedom and your record, but a skilled criminal defense lawyer can assist at every stage of the case.

At your first court date on a drug possession charge, the judge will typically issue bond conditions that you must follow while the case is pending. An attorney can advocate on your behalf and ensure that your bond conditions are not overly restrictive. Properly defending a drug possession charge can take many months and an attorney can help to ensure that you live a normal life while your case is being investigated and the evidence is being gathered.

Once the evidence has been received, a drug possession attorney should review the evidence with you, advise you on your options and the best way to resolve your case. Criminal cases are resolved by dismissal, trial or plea agreement. Dismissal is always the goal, but if your case is not dismissed, an experienced attorney should assist you in evaluating the evidence and making the best decision on how to resolve your case. 

To obtain the best plea, or a “not guilty” verdict at trial, the experience of your attorney is critical. No matter what kind of criminal case you are facing, it is always important to hire an attorney with the skill and experience to go to trial. Although not every case will actually go to trial, attorneys who are known as trial attorneys are frequently able to obtain better plea agreements than criminal lawyers who rarely go to trial. 

Defenses to Drug Possession in Houston 

There are many defenses that are available in drug possession cases and the best defense will depend on the particular facts of your case and arrest. In general, defenses in possession of controlled substance cases can be categorized as either factual defenses or legal defenses. 

A factual defense in a drug possession case usually means that prosecutors lack evidence to prove that a person is guilty of knowingly possessing a controlled substance. The most common factual defense has to do with the element of knowing possession. This is sometimes referred to as an “affirmative link” between the defendant and the substance, which prosecutors must prove by showing that a defendant exercised some control or management over an items or substance. If prosecutors cannot prove that a defendant knowingly possessed a controlled substance, that could lead to a dismissal or an acquittal of a drug charge. 

In drug possession cases, legal defenses involve an argument that the actions of law enforcement violated the rights of the defendant under the United States or Texas Constitutions. In the United States, people enjoy a right to be free from “unreasonable search and seizure,” which means that the police cannot detain or search a person without a proper legal basis. Very frequently, over-zealous law enforcement will violate the rights of defendants by stopping, detaining, or searching without a proper legal justification. If the police violate the rights of the defendant in a drug case, and the violation leads to the discovery of a controlled substance, it is possible that a drug possession attorney can get the evidence “suppressed,” which means that it cannot be used against the defendant in a criminal case. 

Other less common defenses are mistaken identity, entrapment or that the defendant possessed a valid prescription. Additionally, if the case involves an overdose, Texas law provides a defense for many drug charges for the first person to call law enforcement to seek medical attention. 

How To Choose a Houston Drug Possession Attorney 

There are many things to consider when hiring a drug possession attorney. The first is that drug possession cases can be specialized and involve legal and technical areas that many attorneys may not have experience with. To be able to effectively defend a drug possession charge, a criminal defense attorney should be familiar with the law of search and seizure as well as have some familiarity with how drug testing and laboratories work. When meeting with an attorney, it is important to ask detailed questions about their experience handling drug cases. 

Additionally, it is important to hire an attorney who has the willingness and experience to go to trial. The unfortunate reality is that many attorneys avoid going to trial due to inexperience, fear or laziness. Being known as an attorney who avoids trial can be a huge impediment to obtaining a good result. Although not every drug possession case will actually go to trial, keeping the option of trial available can be very important from a negotiation perspective. And of course, if a case actually goes to trial, it is important to have an attorney on your side with the experience to obtain a verdict of “not guilty.”

Hiring an attorney is a possession of controlled substance case is a huge decision and it is always a good idea to speak with several attorneys before making a decision. Your attorney will do much more for you than help you resolve your case. An attorney will advise and assist you at every stage of the case.

Contact Our Houston Drug Possession Attorney Today 

If you are charged with possession of any controlled substance in the Houston area, Ceja Law Firm is an excellent choice. Attorney Jose Ceja is a former felony drug prosecutor who has handled thousands of drug cases, including cases involving the possession of marijuana, cocaine, ecstasy, methamphetamine, heroin, Ecstasy/MDMA, and many other substances. He has received extensive specialized training in all aspects of drug cases and is uniquely qualified to defend drug cases. Call Ceja Law Firm today for a free consultation.