Articles Posted in Drug Offenses

Numerous statutes throughout the country identify and prohibit controlled substances, creating an elaborate set of drug schedules containing hundreds of plants, synthetic compounds, and other materials. Correct identification of an allegedly illegal drug is a key part of proving guilt beyond a reasonable doubt. Police officers charged with enforcing drug laws cannot reasonably be expected to recognize all, or even most, of these substances on sight. Field kits used to test suspicious substances, however, have a very poor track record for reliability and have led to multiple wrongful convictions in Texas drug crime cases. Police often focus on a small number of drugs that, because of their general familiarity, tend to stand out among the multitudes of substances contained in state and federal schedules. A recent case, which involved the inaccurate visual identification of a hibiscus plant as marijuana, demonstrates this problem.

Both the federal Controlled Substances Act and its Texas equivalent prohibit the possession and distribution of marijuana. In Texas, it is an offense to “knowingly or intentionally possesses a usable quantity of marihuana.” Tex. Health & Safety Code § 481.121(a). The offense ranges from a Class B misdemeanor to a felony punishable by life imprisonment, depending on the amount. Texas prohibits “delivery” of marijuana, defined as “transfer[ring]…to another a controlled substance,” with similar penalties. Id. at §§ 481.002(8), 481.120. Delivery of marijuana to a child is a second-degree felony, regardless of the amount. Id. at § 481.122. All of these offenses require proof that the defendant acted “knowingly” and that the substance at issue was, in fact, marijuana.

A lawsuit filed by a married couple in Pennsylvania illustrates how quickly misidentification of an alleged controlled substance can go wrong. Cramer v. Nationwide Mut. Ins. Co., et al, No. 17-11043, complaint (Pa. Ct. Comm. Pleas, Butler Cty., Nov. 16, 2017), removed to No. 2:17-cv-01657 (W.D. Pa., Dec. 22, 2017). Although the case involves a civil lawsuit, one erroneous field test could have made it a criminal matter. According to the plaintiffs’ complaint, an insurance agent visited their home in October 2017 to survey damage from a fallen tree. They allege that the agent took photographs of several hibiscus plants, mistakenly believing them to be marijuana plants. The agent allegedly turned these photographs over to local police and reported that the plaintiffs were growing marijuana on their property.

Texas continues to impose strict prohibitions on marijuana possession, even as other states substantially reduce criminal penalties or even legalize recreational use altogether. A bill introduced in the Texas Legislature this year, HB 81, would have eliminated criminal penalties for possession of small amounts of marijuana. This should not be confused with legalization, however. The bill would have replaced the criminal penalty with a civil penalty. A person would have to pay a fine but would not face jail time or gain a criminal record. As the 2017 legislative session draws to a close, the bill’s prospects do not look good. Still, it often takes more than one session to gain enough support for certain bills, and this bill made it farther than many other bills addressing this issue. When the next session begins in 2019, a similar bill might have a better chance.

State law deals with marijuana separately from other controlled substances. The classification of the offense of possession of marijuana (POM) depends on the amount that a person “knowingly or intentionally possesses.” Tex. Health & Safety Code § 481.121. At a minimum, POM is a Class B misdemeanor. This occurs when someone possesses a “usable quantity” up to two ounces, and it can result in up to 180 days in jail and a fine of up to $2,000. Id., Tex. Pen. Code § 12.22. Possession of more than two ounces, but no more than four ounces, is a Class A misdemeanor, which has twice the maximum potential penalty as a Class B misdemeanor. Tex. Pen. Code § 12.21. POM becomes a felony under current law for amounts in excess of four ounces. The lowest-level felony in Texas, a state jail felony, could result in a maximum fine of $10,000 and 180 days to two years in jail. Id. at § 12.35.

HB 81 would have amended the statutory provisions dealing with the lowest-level POM offense. Possession of one ounce of marijuana or less would no longer be subject to criminal penalties, while possession of more than one ounce, up to two ounces, would be a Class B misdemeanor. POM of one ounce or less would result in a civil penalty of $250 but no arrest or criminal conviction. A fourth or subsequent violation of this provision would be a Class C misdemeanor, which is punishable by a fine of up to $500 but does not include jail time. Id. at § 12.23.

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As more and more U.S. states enact measures allowing marijuana possession and use for medical or even recreational purposes, federal laws regulating marijuana look increasingly out of step with the rest of the country. More than half of all U.S. states, including Texas, allow medical marijuana use as of early 2018, although Texas’ medical marijuana program is one of the country’s most restrictive. The federal Controlled Substances Act (CSA), however, still classifies marijuana in its most restricted schedule. Various efforts to challenge the constitutionality of the CSA’s marijuana classification have failed. A recent lawsuit filed by medical marijuana users, including a young girl from Texas who had to move to Colorado for epilepsy treatment, challenged the CSA’s marijuana scheduling on Due Process grounds. The court ruled against them and granted the defendants’ motion to dismiss, partly on procedural grounds. Washington, et al. v. Sessions, et al., No. 1:17-cv-05625, opinion (S.D.N.Y., Feb. 26, 2018).

According to the CSA, a Schedule I controlled substance “has a high potential for abuse,” has “no currently accepted medical use,” and “lack[s]…accepted safety for use…under medical supervision.” 21 U.S.C. § 812(b)(1). The statute classifies “marihuana” directly alongside drugs like LSD, peyote, and heroin. Id. at § 812(c)(I). The Attorney General has authority to review the schedules and to remove a drug upon a finding that it “does not meet the requirements for inclusion in any schedule.” Id. at § 811(a)(2).

The U.S. Supreme Court struck down a challenge to the CSA under the Commerce Clause in Gonzales v. Raich, 545 U.S. 1 (2005). The plaintiffs argued that Congress did not have the power to prohibit them from growing marijuana for their own personal use in compliance with state medical marijuana laws. The court compared the CSA’s marijuana prohibition to federal laws regulating wheat production, and it held that the CSA “is squarely within Congress’ commerce power” because even production solely for personal use “has a substantial effect on supply and demand in the national market.” Id. at 19.
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Marijuana possession under Texas drug crime laws ranges from a misdemeanor offense to a major felony, depending on the amount. The Texas Legislature passed a law in 2007 that allows a “cite and release” policy, rather than arrests, for minor marijuana possession and other misdemeanors. Some, but far from all, Texas cities have adopted this policy. Law enforcement officials in neighboring or overlapping jurisdictions might disagree over cite and release. For example, the District Attorney’s Office in Bexar County, where San Antonio is located, announced the implementation of cite and release last year, while the San Antonio Police Department and other local police departments have expressed disagreement with the policy.

Possession of small amounts of marijuana is a misdemeanor offense under Texas law. If the amount is no more than two ounces, it is a Class B misdemeanor, increasing to a Class A misdemeanor for an amount that does not exceed four ounces. Tex. Health & Safety Code §§ 481.121(b)(1), (2). A Class A misdemeanor carries a maximum penalty of one year in jail and a $4,000 fine. Tex. Pen. Code § 12.21. The maximum punishment for a Class B misdemeanor is half of that:  180 days in jail and a fine of $2,000. Id. at § 12.22.

The 80th Texas Legislature passed HB 2391 in May 2007. It took effect on September 1 of that year. Analysis of the bill noted the burdens on county jails throughout Texas, many of which were filled to capacity. The law at the time effectively required police to take people into custody for Class A and Class B misdemeanors. The bill amended Article 14.06 of the Texas Code of Criminal Procedure to create exceptions to this requirement. For certain offenses, police could issue a citation instructing a person to appear before a magistrate at a specified time and place, much like a ticket issued for a traffic violation. This applies to Class A and B marijuana possession, as well as certain misdemeanor offenses under the Texas Penal Code.

While drug laws at the federal and state levels classify a vast array of “controlled substances,” two in particular have stood out in recent political and legal debates. The legalization of marijuana for medical use is now a reality in at least 26 states, including Texas. Several states have gone a step further and legalized the distribution and possession of small amounts of marijuana for recreational use. At the same time, opioid use is on the rise across the country, and the number of deaths resulting from overdoses have led many to call it an “epidemic.” Both drugs are scheduled as controlled substances, but the similarities mostly end there. Some research suggests that allowing medical marijuana use may reduce the number of opioid overdose deaths. Federal officials, however, continue to view opioid use as a matter of criminal enforcement rather than public health. The federal government’s approach to these issues is likely to influence the Texas criminal justice system’s response.

The term “opioid” can refer to almost any drug derived from opium, including heroin. In its current usage, it usually refers to prescription painkillers like hydrocodone and oxycodone, as well as synthetic products like fentanyl. Heroin is classified as a Schedule I controlled substance, meaning it has “a high potential for abuse” and “no currently accepted medical use.” 21 U.S.C. §§ 812(b)(1), (c)(I)(b)(10), (c)(I)(c)(10). Fentanyl and many other pharmaceutical opioid products are Schedule II controlled substances, meaning that, while addictive, they have medical uses. Id. at §§ 812(b)(2), (c)(II)(b)(6). The Drug Enforcement Administration moved hydrocodone from Schedule III to Schedule II in 2014, largely because of the increase in overdose deaths. 79 Fed. Reg. 49661 (Aug. 22, 2014).

Scientific studies have not shown marijuana to have addictive properties at all similar to those of opioids. It is nevertheless classified in Schedule I alongside heroin. 21 U.S.C. §§ 812(c)(I)(c)(10). Numerous state medical marijuana laws dispute the assessment that the drug has no accepted medical use. The Texas medical marijuana law is among the most restrictive in the country, and it allows the use of “low-THC cannabis” only in the treatment of intractable epilepsy. See Tex. Health & Safety Code § 487.001 et seq., Tex. Occ. Code § 169.001 et seq.

Marijuana’s legal status has recently undergone major changes. The federal Controlled Substances Act (CSA) still places marijuana in its most highly restricted category, but more than half of the states in the U.S., including Texas, now allow medical marijuana to some extent. Colorado, California, and several other states have legalized the production, sale, and possession of small amounts of marijuana for recreational purposes. This has led to legal disputes over whether states like Colorado have exceeded their constitutional authority. For criminal justice advocates in Texas, where marijuana remains a highly controlled substance, law enforcement attention to suspected interstate drug trafficking raises a variety of constitutional civil rights questions.

The CSA classifies “marihuana” as a Schedule I controlled substance. 21 U.S.C. § 812(c)(I)(c)(10). The statute prohibits “manufactur[ing], distribut[ing], or dispens[ing]” a controlled substance, or “possess[ing] with intent to” do any of the aforementioned acts with a controlled substance. Id. at § 841(a)(1). Penalties depend on the identity and amount of the controlled substance involved. Texas marijuana law classifies THC, the active component of marijuana, in Penalty Group 2. Tex. Health & Safety Code § 481.103(a)(1). It identifies numerous offenses related to the manufacture, delivery, and possession of both Penalty Group 2 controlled substances in general and marijuana in particular. See, e.g. id. at §§ 481.116, 481.121.

The U.S. Constitution’s Commerce Clause authorizes Congress “to regulate Commerce…among the several States.” U.S. Const. Art. I, § 8, cl. 3. The CSA has faced constitutional challenges alleging that the federal government lacks jurisdiction to enforce federal drug laws within states that have legalized marijuana to various extents. The Supreme Court rejected this argument in Gonzales v. Raich, 545 U.S. 1 (2005), but it remains a controversial question. The federal government’s authority to deal with controlled substances that cross state lines, on the other hand, rather unambiguously falls within the federal government’s constitutional authority. This is where many recent legal challenges have arisen.

Federal and state laws regarding both medical and recreational use are coming more and more into conflict. More than half of the states in the U.S., as well as the District of Columbia, allow the possession and use of marijuana for medical purposes. Federal law, on the other hand, classifies it alongside the most highly restricted controlled substances. The current U.S. Attorney General (AG) has repeatedly stated an intention to crack down on legal state medical marijuana programs. A group of medical marijuana patients, including a father and daughter who relocated from Texas to Colorado so that the daughter could obtain relief from intractable epilepsy, have filed suit against the AG and other federal officials and agencies. Washington, et al. v. Sessions, et al., No. 1:17-cv-05625, complaint (S.D.N.Y., Jul. 24, 2017). The plaintiffs allege that the federal government’s scheduling of marijuana as a controlled substance violates the Due Process Clause of the Fifth Amendment, unlawfully restricts some plaintiffs’ freedom of travel between states, and exceeds the authority conferred by the Commerce Clause.

Of the five schedules established by the Controlled Substances Act (CSA), Schedule I is the most restrictive. It is defined to include substances with a “high potential for abuse,” “no currently accepted medical use,” and a “lack of accepted safety for use…under medical supervision.” 21 U.S.C. § 812(b)(1). Schedule I has included “marihuana” since its original enactment. Id. at § 812(c)(I)(c)(10). The Washington lawsuit alleges that “the Federal Government does not believe, and…never has believed” that marijuana meets these three criteria. Washington, complaint at 4.

Texas is among the states that have authorized medical marijuana to some extent, although in Texas’ case, the extent is not far at all. The Texas Compassionate-Use Act only applies to “low-THC cannabis.” This means cannabis products that contain, at most, “0.5 percent by weight of tetrahydrocannabinols” and at least “10 percent by weight of cannabidiol.” Tex. Occ. Code § 169.001(3). This essentially minimizes the active component of marijuana, THC. It may only be prescribed for the treatment of intractable epilepsy after a patient has tried two “maximally titrated antiepileptic drugs” without success. Id. at § 169.001(2).

Among the many exceptions to the Fourth Amendment’s requirement that police obtain a warrant before conducting a search or seizing a person or their property, the “border search exception” is one of the oldest and most well-established in the law. Many exceptions to the warrant requirement are based on expediency. For example, the “exigent circumstances exception” applies when taking the time to obtain a warrant is likely to result in the loss or destruction of evidence. The right of a nation to police its own borders, on the other hand, is behind the border search exception. The exception is not without limits, of course, but the list of law enforcement activities allowed during border stops has grown over the years, and it includes drug interdiction activities that are not allowed further inside the nation’s borders. A wide variety of Texas drug seizures occur at border checkpoints like Sierra Blanca, and at other checkpoints along the U.S.-Mexico border.

As a general rule, law enforcement officials must be able to demonstrate probable cause to believe that a search will reveal contraband or evidence of criminal activity. In order to initiate a traffic stop, they must have a reasonable suspicion of some form of wrongdoing. The U.S. Supreme Court, however, has identified several situations in which law enforcement can set up checkpoints along public roadways—which result in the stopping of vehicles without probable cause or reasonable suspicion—without violating the Fourth Amendment. For example, courts have held that the public safety interest in preventing driving while intoxicated justifies checkpoints that involve a brief stop to assess whether drivers are too impaired to drive. Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990).

Immigration officials are allowed to operate traffic checkpoints near international borders for the purpose of investigating travelers’ citizenship or immigration status. United States v. Martinez-Fuerte, 428 U.S. 543 (1976). This includes sending vehicles to “secondary inspection” areas. The Supreme Court’s ruling specifically addressed the use of checkpoints at fixed locations, like Sierra Blanca in Texas. Immigration officials operating mobile checkpoints or conducting traffic stops must meet a greater standard of reasonable suspicion.

The “border search exception” to the Fourth Amendment’s search warrant requirement has been part of this country’s law since the very first session of the U.S. Congress. Federal officials, for example, have the authority to search “all persons coming into the United States from foreign countries.” 19 U.S.C. § 1582. The legal principle behind the border search exception is the right of the United States, as a sovereign nation, to control who and what enters its territory. The “border” is no longer limited to border crossings and seaports. It now includes international airports, and the search practices allowed for international travelers have expanded to affect purely domestic travel. As a result, Texas drug charges may result from searches at airports under federal law.

Warrantless searches at airports may be justified by a combination, depending on the circumstances, of the border search exception, which is based on national sovereignty, and exceptions that are based on individuals’ reasonable expectations of privacy. The courts have ruled that international travelers at airports do not have a reasonable expectation of privacy, comparing it to the “automobile exception” allowing warrantless searches of vehicles in some situations. Florida v. Royer, 460 U.S. 491, 515 (1983), citing United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976).

The Transportation Security Administration (TSA) is in charge of passenger security screenings at all U.S. airports. Congress created the agency in the Aviation and Transportation Security Act. Pub. L. 107-71 § 101, 115 Stat. 597 (Nov. 19, 2001); 49 U.S.C. § 114. The TSA was initially part of the U.S. Department of Transportation, but the Homeland Security Act of 2002 moved it to the newly created Department of Homeland Security (DHS). Pub. L. 107-296 § 403(2), 116 Stat. 2178 (Nov. 25, 2002); 6 U.S.C. § 203. The TSA is responsible for screening all air passengers and their luggage prior to boarding, with broad authority to do so. 49 U.S.C. §§ 114(e)(1), 44901.

Law enforcement officials in Texas have used a variety of tools to help them investigate suspected drug-related offenses. Some of these tools have resulted in profound injustice in the form of wrongful convictions. A kit used by many officers around the state to test substances they believe are an illegal drug has returned “positive” results for substances later revealed to be innocuous. By the time more accurate test results were available in many of these cases, defendants had already pleaded guilty rather than risk going to trial against what police had represented as incontrovertible evidence of guilt. Now, the Houston Police Department has announced that it will no longer use these field kits, but not because of concerns about justice. Instead, the department cited risks posed to officers from opiate exposure during testing. Still, this is welcome news for Texas criminal defense advocates.

In any criminal prosecution, the state has the burden of proving every element of the charged offense, as it is defined by statute, beyond a reasonable doubt. Field-testing kits are often used by police to test substances believed to be cocaine. The relevant criminal charge would likely be possession of a controlled substance in Penalty Group 1. This would require proof beyond a reasonable doubt of four elements:  that a defendant (1) possessed a controlled substance (2) that is included in Penalty Group 1, (3) that the defendant did so “knowingly or intentionally,” and (4) that the defendant did not have a valid prescription for the substance from a medical doctor. Tex. Health & Safety Code §§ 481.102(3)(D), 481.115(a).

In a cocaine possession case, the prosecution must prove beyond a reasonable doubt that the substance is, in fact, cocaine. The requirement of proof beyond a reasonable doubt means that the “finder of fact” concludes that no reasonable doubt exists as to whether the substance is cocaine. The “finder of fact” is either the judge presiding over the case or a jury of the defendant’s peers. Results from a drug-testing kit routinely used by police can appear very convincing, unless the defendant is able to challenge the accuracy or validity of those test results. An innocent defendant without the resources to challenge the test results might choose to plead guilty rather than risk turning the decision over to a jury.