Texas Health & Safety Code Offenses 481.125 – Possession or Delivery of Drug Paraphernalia
WHAT IS POSSESSION OR DELIVERY OF DRUG PARAPHERNALIA IN TEXAS?
The Texas law against possession or delivery of drug paraphernalia prohibits transferring or having care, custody, control, or management of any equipment, product, or material used or intended for use in growing, manufacturing, preparing, packaging, storing, or using controlled substances.
- What is drug paraphernalia? Texas Health and Safety Code Section 481.002 defines “drug paraphernalia” as equipment, a product, or material that is used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, or concealing a controlled substance in violation of this chapter or in injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter. The term includes:
- a kit used or intended for use in planting, propagating, cultivating, growing, or harvesting a species of plant that is a controlled substance or from which a controlled substance may be derived;
- a material, compound, mixture, preparation, or kit used or intended for use in manufacturing, compounding, converting, producing, processing, or preparing a controlled substance;
- an isomerization device used or intended for use in increasing the potency of a species of plant that is a controlled substance;
- testing equipment used or intended for use in identifying or in analyzing the strength, effectiveness, or purity of a controlled substance;
- a scale or balance used or intended for use in weighing or measuring a controlled substance;
- a dilutant or adulterant, such as quinine hydrochloride, mannitol, inositol, nicotinamide, dextrose, lactose, or absorbent, blotter-type material, that is used or intended to be used to increase the amount or weight of or to transfer a controlled substance regardless of whether the dilutant or adulterant diminishes the efficacy of the controlled substance;
- a separation gin or sifter used or intended for use in removing twigs and seeds from or in otherwise cleaning or refining marihuana;
- a blender, bowl, container, spoon, or mixing device used or intended for use in compounding a controlled substance;
- a capsule, balloon, envelope, or other container used or intended for use in packaging small quantities of a controlled substance;
- a container or other object used or intended for use in storing or concealing a controlled substance;
- a hypodermic syringe, needle, or other object used or intended for use in parenterally injecting a controlled substance into the human body; and
- an object used or intended for use in ingesting, inhaling, or otherwise introducing marihuana, cocaine, hashish, or hashish oil into the human body, including:
- a metal, wooden, acrylic, glass, stone, plastic, or ceramic pipe with or without a screen, permanent screen, hashish head, or punctured metal bowl;
- a water pipe;
- a carburetion tube or device;
- a smoking or carburetion mask;
- a chamber pipe;
- a carburetor pipe;
- an electric pipe;
- an air-driven pipe;
- a chillum;
- a bong; or
- an ice pipe or chiller.
- What is a controlled substance? Texas Health and Safety Code Section 481.002 defines a “controlled substance” as a substance, including a drug, listed in Schedules I through V or Penalty Group 1, 1-A, 1-B, 2, 2-A, 3, or 4. The term includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance, but does not include “hemp” as defined by Texas Agriculture Code Section 121.001, or the tetrahydrocannabinols in hemp.
- What is the difference between Schedules I, II, III, IV, and V and the penalty groups of controlled substances? Controlled substances are divided into five “schedules” based on potential for abuse or addiction, which dictate the rules medical professionals must follow in prescribing medications listed in each schedule. Schedule I, for example, are the most addictive substances, and may generally not be prescribed. Substances in Schedule I are also typically in Penalty Group 1, and are considered illegal under most circumstances.Controlled substances are divided into “penalty groups” for determining criminal classification and penalties.
WHAT IS THE POSSESSION OR DELIVERY OF DRUG PARAPHERNALIA LAW IN TEXAS?
Tex. Health & Safety Code § 481.125. OFFENSE: POSSESSION OR DELIVERY OF DRUG PARAPHERNALIA.
(a) A person commits an offense if the person knowingly or intentionally uses or possesses with intent to use drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal a controlled substance in violation of this chapter or to inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter.
(b) A person commits an offense if the person knowingly or intentionally delivers, possesses with intent to deliver, or manufactures with intent to deliver drug paraphernalia knowing that the person who receives or who is intended to receive the drug paraphernalia intends that it be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal a controlled substance in violation of this chapter or to inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter.
(c) A person commits an offense if the person commits an offense under Subsection (b), is 18 years of age or older, and the person who receives or who is intended to receive the drug paraphernalia is younger than 18 years of age and at least three years younger than the actor.
(d) An offense under Subsection (a) is a Class C misdemeanor.
(e) An offense under Subsection (b) is a Class A misdemeanor, unless it is shown on the trial of a defendant that the defendant has previously been convicted under Subsection (b) or (c), in which event the offense is punishable by confinement in jail for a term of not more than one year or less than 90 days.
(f) An offense under Subsection (c) is a state jail felony.
(g) It is a defense to prosecution for an offense under Subsection (a) that the actor:
(1) was the first person to request emergency medical assistance in response to the possible overdose of another person and:
(A) made the request for medical assistance during an ongoing medical emergency;
(B) remained on the scene until the medical assistance arrived; and
(C) cooperated with medical assistance and law enforcement personnel; or
(2) was the victim of a possible overdose for which emergency medical assistance was requested, by the actor or by another person, during an ongoing medical emergency.
(h) The defense to prosecution provided by Subsection (g) is not available if:
(1) at the time the request for emergency medical assistance was made:
(A) a peace officer was in the process of arresting the actor or executing a search warrant describing the actor or the place from which the request for medical assistance was made; or
(B) the actor is committing another offense, other than an offense punishable under Section 481.115(b), 481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b), 481.118(b), or 481.121(b)(1) or (2), or an offense under Section 481.119(b), 483.041(a), or 485.031(a);
(2) the actor has been previously convicted of or placed on deferred adjudication community supervision for an offense under this chapter or Chapter 483 or 485;
(3) the actor was acquitted in a previous proceeding in which the actor successfully established the defense under that subsection or Section 481.115(g), 481.1151(c), 481.116(f), 481.1161(c), 481.117(f), 481.118(f), 481.119(c), 481.121(c), 483.041(e), or 485.031(c); or
(4) at any time during the 18-month period preceding the date of the commission of the instant offense, the actor requested emergency medical assistance in response to the possible overdose of the actor or another person.
(i) The defense to prosecution provided by Subsection (g) does not preclude the admission of evidence obtained by law enforcement resulting from the request for emergency medical assistance if that evidence pertains to an offense for which the defense described by Subsection (g) is not available.
WHAT IS THE PENALTY CLASS FOR POSSESSION OR DELIVERY OF DRUG PARAPHERNALIA IN TEXAS?
The penalty classification for possession or delivery of drug paraphernalia depends on the manner in which the offense is committed:
- Class C misdemeanor, punishable by a maximum $500 fine, if:
- uses or possesses with intent to use drug paraphernalia;
- Class A misdemeanor, punishable by up to one year in county jail, if:
- delivers, manufactures with intent to deliver, or possesses with intent to deliver drug paraphernalia;
- State jail felony, punishable by 180 days to two years in a state jail facility, if the person is over 18 years old, and:
- delivers, manufactures with intent to deliver, or possesses with intent to deliver drug paraphernalia to a child under 18 who is at least three years younger than the accused.
WHAT IS THE PUNISHMENT RANGE FOR POSSESSION OR DELIVERY OF DRUG PARAPHERNALIA IN TEXAS?
The punishment range for possession or delivery of drug paraphernalia corresponds to the penalty classification, and further depends on whether the accused has prior convictions for possession or delivery of drug paraphernalia.
- State jail felony (delivery of drug paraphernalia to a person under 18):
- 180 days to two years in a state jail facility, maximum $10,000 fine;
- Class A misdemeanor (delivery or possession with intent to deliver drug paraphernalia):
- up to one year in jail, maximum $4,000 fine;
- Class A misdemeanor, with one prior conviction for delivery of drug paraphernalia:
- minimum confinement of 90 days in jail, maximum jail sentence of one year, and a maximum $4,000 fine;
- Class C misdemeanor (possession of drug paraphernalia):
- maximum $500 fine, no jail time.
WHAT ARE THE PENALTIES FOR POSSESSION OR DELIVERY OF DRUG PARAPHERNALIA IN TEXAS?
A person charged with possession or transport of certain chemicals with intent to manufacture a controlled substance may be eligible for probation after a conviction, or deferred adjudication without a conviction.
WHAT ARE THE DEFENSES TO POSSESSION OR DELIVERY OF DRUG PARAPHERNALIA IN TEXAS?
A person accused of possession or delivery of drug paraphernalia may attempt to negate at least one of the elements the State must prove at trial, or raise the Good Samaritan defense.
- What is the Good Samaritan defense in Texas? The Texas Health and Safety Code permits a person accused of possession of a controlled substance in PG 4 to raise a Good Samaritan defense at trial if the person was the first to request emergency medical assistance in response to an ongoing possible overdose of the person or another, stayed until first responders arrived, and cooperated with medical and law enforcement personnel.If the accused has successfully raised the Good Samaritan defense in a previous case, or called 911 for an overdose within the 18-month period preceding the instant offense, the person may not raise the Good Samaritan defense at a subsequent trial for possession of a controlled substance.
- What is drug possession in Texas? Texas Health and Safety Code Section 481.002 defines “possession” as actual care, custody, control, or management. Possession does not require proof a person is physically holding the controlled substance.In Rodriguez v. State, No. 04-21-00503-CR, the defendant’s girlfriend let her friend drive the defendant to the store. Police stopped the car while the defendant was in the passenger seat, and found 0.18 grams of methamphetamine in a chewing tobacco tin in the glove box. The officer noticed tobacco around the defendant’s mouth, so he was charged with and convicted of possession of less than a gram of a controlled substance in Penalty Group 1.
The appellate court affirmed. The drugs were conveniently accessible to the defendant on his side of the car, they were in a tobacco tin, and the defendant chewed tobacco.
- What is a search incident to arrest in Texas? The Fourth Amendment to the U.S. Constitution permits police officers to conduct warrantless searches incident to lawful arrests. The justification for permitting such a warrantless search is: (1) the need for officers to seize weapons or other things which might be used to assault an officer or effect an escape; and (2) the need to prevent the loss or destruction of evidence. See State v. Granville, 423 S.W.3d 399, 410 (Tex. Crim. App. 2014).In State v. Sanchez, an officer approached the defendant’s jeep, which was parked in a grassy area next to a bar with the driver’s door open, the engine turned off, and the defendant was asleep in the driver’s seat. The officer woke the defendant up to check on him, and learned he had traffic warrants. Incident to arrest, the officer searched the defendant’s pockets, and he had cocaine. He was then arrested for possession of a controlled substance in PG 1, his car was searched incident to that arrest, and more cocaine was found. The appellate court upheld the car search as a valid search incident to his arrest for possession.
In Botello v. State, police responded to an assault-in-progress. The officer spoke to the victim outside the home, who said the defendant was her estranged husband, had assaulted her, and was still inside. The defendant refused to come out, but the victim consented to a search of the home, so police forcefully went inside. Officers immediately arrested the defendant for assault, searched his pockets, and found over 24 grams of heroin. He was convicted of possession of a controlled substance in PG 1, and the appellate court affirmed.
WHAT IS THE STATUTE OF LIMITATIONS FOR POSSESSION OR DELIVERY OF DRUG PARAPHERNALIA IN TEXAS?
The limitation period for possession or delivery of drug paraphernalia punishable as a misdemeanor is two years. If categorized as a state jail felony, the limitation period is three years.
POSSESSION OR DELIVERY OF DRUG PARAPHERNALIA IN TEXAS
Texas law punishes possessing or delivering any equipment, product, or material that could conceivably be used to manufacture, grow, cultivate, harvest, package, store, compound, prepare, or ingest a controlled substance.
TEXAS POSSESSION OR DELIVERY OF DRUG PARAPHERNALIA
The case law regarding possession or delivery of drug paraphernalia in Texas illustrates how police may use this offense as probable cause to search pockets, purses, and vehicles for evidence of other offenses.
- In Frilot v. State, police responded to a call about a reckless driver, and approached the defendant in a parking lot while he was standing next to his wife’s car, while his wife was in the passenger seat. The vehicle matched the description given by the caller, and the defendant appeared intoxicated. The defendant’s wife gave consent to search the vehicle, and officers found a syringe and torch in the center console. The defendant was detained for possession of drug paraphernalia while police continued searching the car, and they ultimately found heroin. The defendant was convicted of possession of heroin, and the appellate court affirmed.
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DRIVING WHILE INTOXICATED .15
Driving facts involved failing to maintain a single lane and speeding. Client refused breath test and forced law enforcement to obtain search warrant for blood. Blood test result was not used after challenge from Defense, and State waived and abandoned charge.
DRIVING UNDER THE INFLUENCE
Client was a college student, worried about the collateral consequences of an alcohol offense. After negotiation and review of the traffic stop, the case was dismissed. Client received no criminal conviction. The charge was later expunged and deleted from client’s record.
DRIVING WHILE INTOXICATED .15+
Client was involved in minor accident. Client was at fault in accident. A young executive, client was concerned that a criminal conviction for DWI would result in termination. After review of the traffic stop, it was clear the officer lacked probable cause for arrest. State eventually dismissed DWI charge. Client received no criminal conviction.
Client, a military veteran, was facing up to one year in jail. State could not prove intoxication by alcohol, and was prepared to proceed on loss of use by marijuana. After challenging the State to prove that marijuana was ingested at or near time of driving, and that marijuana impaired client’s driving, the State dismissed the case on the day of trial.
DRIVING UNDER THE INFLUENCE
Driving facts involved a false claim by police that taillight was out. After challenging the reasonable suspicion for the traffic stop, the State was forced to dismiss the case when video did not match police report. Client has since expunged arrest, and has no criminal record.
DRIVING UNDER THE INFLUENCE
Client is a public school teacher and faced immediate termination upon conviction. The facts of the case were bad. State was unwilling to budge in negotiation, and matter was set for trial – the last shot at avoiding a conviction and preserving client’s livelihood. State was forced to dismiss on day of trial. Client has no criminal record, and has since expunged the DWI arrest.
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