Frequently Asked Drug Crime Questions
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What are some of the common defenses used for drug crime cases?
The most common argument that criminal defense attorneys use in
drug case is that the evidence was illegally obtained by police. This is usually
a violation of your Fourth Amendment rights, which state that the state
cannot conduct unreasonable searches and seizures. Either your consent
or a search warrant based on probable cause is required for police to
legally search your home or car. If an officer asks to search your home
or car and does not have a warrant, you have the right to refuse. Another
common defense is unlawful self-incrimination, which is a violation of
the Fifth Amendment.
If either violation has occurred, the unlawfully-obtained evidence will
be suppressed and cannot be used against you. This makes it much more
difficult to prove guilt beyond reasonable doubt.
What is drug court? How is it different from a normal criminal court?
Drug crimes are often committed by drug users and drug addicts, who need
specialized treatment and rehabilitation that prison cannot offer. Drug
courts take this into account and, especially for first time offenders,
will require mandatory drug treatment in lieu of jail time. Sometimes,
rehabilitation can result in the dismissal of your charges.
What is forfeiture and how does it apply to drug cases?
Forfeiture is the legal seizure of property by the government. Although
there are two types of forfeitures, civil and criminal, the majority of
forfeitures today are civil. In a civil forfeiture, the government must
have a "preponderance of evidence" that the property was or
could be used to commit a crime. Assets seized in civil forfeitures related
to drug crimes are generally items used for the cultivation or distribution
of controlled substances.
What is drug diversion?
Drug diversion is the abuse or misuse of prescription drugs for recreational
purposes. This can occur via prescription fraud, stealing prescriptions
or drugs, doctor shopping, and illegally ordering drugs through the Internet.
Drug diversion may also refer to a Drug Diversion Program, which can be
an alternative to imprisonment for individuals convicted of drug crimes.
I plan to plead guilty. Do I need a defense attorney?
Yes. When you plead guilty to a drug crime, the prosecution does not necessarily
go easier on you. You could still be subject to the maximum fines or sentence.
A drug crimes defense lawyer can explain your case and may be able to
negotiate a lighter sentence. A legal professional can advise you on voluntary
treatments as well as personal presentation that may make the court decrease
What is a sentencing guideline and how might it affect me?
Sentencing guidelines offer a minimum and maximum standard punishment
based on severity of the crime and the defendant's criminal history.
They were adopted in an effort to help judges remain consistent. Both
state and federal judges are required to at least consider the sentencing
guidelines, but they do not have to abide by them. While sometimes these
guidelines can mitigate a judge's personal prejudices, they can also
nullify the individual circumstances of your case.
How are different types of drugs classified under state law?
All controlled substances are divided into five penalty groups.
Penalty group 1 contains drugs such as
cocaine, oxycodone, hydrocodone, LSD and methamphetamine.
Penalty group 2 contains drugs such as hallucinogenic mushrooms (psilocybin),
ecstasy, PCP and mescaline.
Penalty group 3 contains drugs such as peyote, anabolic steroids, Valium, and
- Penalty group 4 contains drugs such as Buprenorphine and drugs with small
concentrations of codeine.
Marijuana (also spelled marihuana) is not considered a controlled substance in Texas,
but it is illegal to possess, distribute, consume, transport, or cultivate.
How are different types of drugs classified under federal law?
controlled substances are divided into five "schedules."
- Schedule V (5) drugs are generally not considered very dangerous, have
low addiction or abuse potential, and is an accepted medical treatment.
Cough medicine is a Schedule V drug.
- Schedule IV drugs are considered mildly addictive when abused.
- Schedule III drugs, such as steroids, Vicodin, or ketamine, can be used
for medical treatments and can cause moderate physical addiction and high
- Schedule II drugs are easily abused, are highly addictive, but can be legally
prescribed. Cocaine, methamphetamine, and morphine are all Schedule II drugs.
- Schedule I drugs have no accepted medical use and have a high potential
for abuse. Some of these substances are heroin, MDMA (ecstasy), peyote,
and LSD. Controversially, marijuana is also a Schedule I drug under federal
law. Crimes involving Schedule I drugs have extremely harsh penalties,
even for a first time offender.
How are probation and parole different?
First time offenders often receive probation instead of prison sentences.
Probation means that you get to go back to your life, with certain conditions.
These conditions could be regular check-ins with a probation officer,
random drug tests, drug treatment, or community service. If you violate
your probation or commit another crime, there can be serious consequences.
Parole refers to the conditions set when a prisoner is released from jail.
The conditions are often similar to probation.
Is there any way I can avoid going to jail?
Yes. Drug courts are often very helpful in avoiding a prison sentence,
especially if you are a first time offender or if it is a misdemeanor
charge. Often you can trade prison time for drug treatment and rehabilitation;
these are called Drug Diversion Programs. Also, probation may be offered
instead of jail time. You will need an experienced drug crimes defense
attorney to present your case and convince the court that prison is not
the best option for you.
What is the difference between a federal crime and a state crime?
A federal crime is an action that violates federal law; a state crime
is an action that violates state law. Either can be a misdemeanor or a
felony. Federal crimes must be prosecuted in federal courts, and the attorneys
must be licensed or permitted to practice in a federal court.