Were You Arrested in Texas and Need Help? Check Out Our FAQs
A face-to-face meeting with Walter Reaves will help answer all of your questions, but until then, here are a few of the most frequently asked questions we hear.
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The dope belonged to my friend. How can I get my charge dismissed?
A common scenario involves 2 or more people who are stopped for a traffic violation. The police end up searching the car and finding dope - such as marijuana, cocaine, methamphetamine, or some other controlled substance. The police arrest everyone, and you want to know how to get your case dismissed. The question is usually whether your friend can either go to the police or prosecutor and sign something claiming the contraband was his, and whether that will be enough to get your case dismissed. The answer is probably not.
To understand the answer, you need to understand the law. No matter what the substance is, the law prohibits "possession". Possession has a specific meaning, and it is not limited to ownership. Ownership is generally limited to one person; for example, only one person generally owns a car or some other item of property. Possession is different though, and more than one person can possess something. The legal definition is "care, custody or control." In most drug cases, the issue comes down to who had access to the drugs.
There's also another element, and that is that the possession must be knowing or intentional. In other words, you must know the drugs are there, and in some cases, know they are drugs.
A common situation involves marijuana possession. The officers make a stop and smell marijuana. They then search the car and find a baggie of marijuana in the front seat. They are going to assume that everyone in the car was smoking, and therefore everyone had possession of the weed. One person can claim ownership, but that usually is not going be enough. If they don't smell marijuana (which almost never happens) and the marijuana is is not plainly visible, you have a better chance.
You might wonder what happens if you are in a car, and your friend brings out a bag of marijuana - which you didn't know about - and everyone but you starts smoking. Since the police assume everyone knew about the marijuana and was using it, you are going to have an extremely difficult time convincing a prosecutor that you aren't just as guilty as the others. By the way, the teaching point for that is to choose better friends.
The last example illustrates another factor you must be aware of, which is that prosecutors don't usually believe people who admit the drugs are theirs. You probably think that doesn't make any sense, since they are admitting guilt, and I would probably agree with you. However, they look at it as one person who knows they are guilty trying to help a friend out. They don't have anything to lose, so why not try to do something for someone else. I've seen some pretty dramatic examples of this. In one case, an apartment owner came into court and admitted under oath that the cocaine belonged to them. They had no deal, and the case against them wasn't that strong; they were coming in and subjecting themselves to the possibility of going to prison. Not only did the prosecutor not believe them, but the jury also didn't believe them.
So, what's the lesson here? Apart from choosing good friends, the lesson is to not think you have nothing to worry about if your friend claims responsibility for the dope. Even if they follow through on that after hiring a lawyer, the prosecutor is probably still going to pursue the case against you. Don't count on a dismissal. Instead, hire your own lawyer, who will know the arguments to make to protect your interests.
Can I be arrested if my friend has pot?
Let's imagine you decide to go out on Friday night with several of your friends. You don't smoke marijuana - or do any type of drugs - but your friends do. They're still your friends, and you just let it go. You're heading to a party, and they decide to fire up a joint. Everyone is having a good time - even you - when all of the sudden you see the red flashing lights behind you. You know how this ends; the officer smells marijuana and ends up finding a baggie in the car. You correctly tell the officer that you weren't doing anything - he hasn't heard that before, right? - but you still get arrested.
So what happens from there? Possession is defined by Texas law as "care, custody or control". Texas law also says that more than one person can "possess" something, which is why everyone in the car got arrested. When the item is not on you, the focus is on knowledge and access. While it's not enough to show you knew there was marijuana in the car, you probably still had access to it - especially if it was out in the open. So how would you defend against that?
There are a number of ways to do that, but none of them are foolproof. Even if your friend(s) claim it was theirs, the police - and the court - may believe they are just covering for you.
The moral of the story is this: Don't think that just because you're not using drugs - whatever it is - or they aren't on you, that you are in the clear. So don't get yourself in that position. If you are able to eventually get the charges dismissed, you still had to spend money on bond, got a free trip to the jail, and had to pay a lawyer. It's a pretty high price to pay for something that you can avoid.
When should I get a lawyer when I may be part of an investigation
Most drug cases are relatively straightforward; the police find drugs on you, or in your car or house, and you get charged with possession. If you have a large quantity, you might get charged with possession with intent to distribute. Occasionally though there may be a lengthy investigation.
The police may decide to investigate further in several situations. Sometimes a person will be arrested with a small amount of drugs. Instead of making an arrest for a minor offense, they may offer the individual a chance to "work his case out". That involves providing them with information on where he's getting his drugs from. They may even use the person to make a controlled buy, under police surveillance. They might then arrest that person and continue doing the same thing, working their way up the chain.
If they are going to file charges, they may wait until they've gone as far as they think they can go.
When the police suspect an organization is involved they might try to put together a conspiracy case. Usually those are federal investigations, since it is far easier to establish a conspiracy in federal court than it is in state court. It's not uncommon for those investigations to last months, and sometimes longer.
Sometimes people will come talk to me after they've been questioned, or suspect they may be the target of an investigation. There are a number of questions people have, such as should I cooperate, and do I need a lawyer. As you might guess, my advice is to get a lawyer sooner rather than later. The obvious reason is that you don't want to do or say anything that will help the State make a case against you. Another reason is to get some advice about how much trouble you may be in. Most lawyers who have experience in drug cases can figure that out.
There's still another reason to get a lawyer early. Sometimes people think they can talk their way out of the situation; all they have to do is explain things. Trust me - that rarely works. Instead, you usually end up digging a hole for yourself. There may be information the police need to know though so they will have a complete picture. A lawyer will know the best way to present it - or even if it's something you want to present.
The worst thing you can do in this situation is sit back and hope you don't get arrested. By then it's too late - and you really do need a lawyer.
Do crime labs make mistakes in testing drugs?
Many people assume that testing for drugs is a relatively straightforward process. We envision a machine where you put something in, and it tells you yes or now. The truth is testing is not as simple as that. A number of processes are involved, which means mistakes will be made.
It is probably impossible to determine how often mistakes are made. Even if it's a small percentage of cases though, if it's your case the mistake can mean the difference between living with criminal record, or getting the charges dismissed.
When the lab does do everything right, sometimes they determine that what was submitted was not a controlled substance. Every few weeks I see a case where someone pled guilty, only to later find out that whatever they had wasn't a controlled substance at all. Examples of that include Ex Parte Davenport-Fritchse, No. AP-77,013 (Tex. Crim. App. - 4/17/13) and Ex Parte Gainus, WR-79,346-01 (Tex. Crim. App. - 5/8/13) In the first case the defendant was sentenced to 60 days, and in the second case three years.
I still don't understand how that happens. In Waco and McLennan County, the District Attorney will not file a felony case without having a lab report, which would hopefully solve that problem. I would imagine a number of other counties have the policy. It only makes sense to make sure you are actually prosecuting a crime before moving forward. Otherwise you end up with cases like those above.
I also don't understand why a defendant would agree to do that. Were they duped, and thought they had actually had something? I realize drug dealers are probably not the most trustworthy people out there, but do they sell fake stuff that often? You would think it would be pretty easy to figure out.
The lesson from all of this is to not take anything for granted. If the lab report is back, look behind it and make sure everything was done properly. If it's not, don't go forward until you have it.
I only had a very small amount of marijuana on me and I was still arrested. I thought it was decriminalized in Texas?
Some states have decriminalized possessing small amounts of marijuana, but unfortunately for you, Texas is not one of them. In fact, Texas takes nearly every kind of drug arrest extremely seriously. Even if you're holding just a tiny bit of marijuana for a friend, if it's found in your possession, you could end up serving jail time.
If you are found guilty of possessing two ounces or less of marijuana, you will most likely be convicted of a Class B Misdemeanor and can serve up to 180 days in jail and face up to a $2,000 fine. There's also a chance the judge will order drug treatment and/or community service. You will also lose your driver's license for 6 months or more.
State Rep. Harold Dutton (D-Houston) has been trying to get House Bill 184 passed, but is meeting quite a bit of opposition. His proposed legislation would knock the charge for individuals with one ounce of marijuana or less down to a Class C misdemeanor, instead of being a Class B misdemeanor. That would mean, if convicted, a person would face a $500 fine and no jail time. Dutton sponsored an identical bill in the 2011-2012 legislative session, but the bill died in committee.
There may not be much you can do to sway our state's lawmakers, but you can get a good drug crime attorney to take your case on. Many times, law enforcement officers violate search and seizure laws; if that is what happened in your situation, you may be able to get the charges thrown out. Contact Waco drug crime defense attorney Walter Reaves by calling 254-296-0020 to schedule a free consultation.