Articles Posted in Drug Offenses

Published on:

Montgomery County Drug Arrest Lawyer
An interesting opinion dropped from the Texas Court of Criminal Appeals this week.  In the case, an undercover police officer was surveilling a sports bar in Houston known for its well documented history of drug busts.  In actuality, under the guise of surveillance, the police officer was probably profiling customers at the local bar.  One unlucky man stopped at the bar and stayed for what the officer stated was in the range of three to five minutes and then left.  The officer followed the man and then called for a marked car to make the bust so as not to blow his cover.  The marked police car then pulled the man over for an alleged lane change without a turn signal.  Before stopping the car, the officer noticed the man making furtive gestures around the console in the vehicle.  This is a ruse officers use to try and make a search.  As if a person in a car behind you can see what you are doing in front of them in your car at night.  Please.  The uniformed officer then arrested the man and searched his vehicle.  In the search, the officer finds two baggies of cocaine.  One in the center console and one between the console and the passenger seat.

The attorney for “citizen accused” filed a motion to suppress the evidence of the search in the trial court but the motion was denied.  The man subsequently entered into a plea agreement for three years deferred adjudication but preserved his right to appeal the ruling of the trial court.  Under the Fourth Amendment, a search of a person or property is not reasonable without a warrant without a specifically defined exception.  One of these exceptions is termed the “automobile exception.”  Under the automobile exception, police may search your car without a warrant if there is probable cause to believe that the vehicle contains contraband.

The court of appeals considered the issue of probable cause in this matter.  There, the Court used the following facts to justify the search.  First, the officer was performing surveillance on a bar known for drug sales. Second, while the man was stopped in a turn lane, with marked police car behind him, and an undercover officer beside him.  Staring.  Said the man made furtive gestures in his car.  Okay, so two cops have you boxed in and are staring you down.  You’re supposed to act cool, right?  Sure.  The court of appeals affirmed the finding of the trial court.  The ruling that being at a bar known for drug activity and making furtive gestures while being boxed in by two cops was enough for probable cause to arrest you.  Fair, right?

Published on:

Marijuana DWI Attorney
NPR and the Wall Street Journal are some of the many news agencies featuring op-ed articles on the problem states and even countries are facing with impaired driving as it relates to marijuana.  Although marijuana is still illegal in Texas at any level, just what constitutes whether or not an individual is impaired, and at what point is the person charged with driving while intoxicated?  These are tough questions but as more states are legalizing cannabis in one form or another it is a problem that needs to be solved and yet may never happen.

In Texas, we have the legal level for alcohol set at a 0.08 BAC.  So, what’s the problem with weed?  Unlike alcohol, drugs like THC do not have a relationship between the levels of the drug in the tissues and what is considered impairment.  To make matters worse, the method of ingestion can also vary the level of impairment.  Our bodies process marijuana differently when we smoke the marijuana versus when the marijuana is eaten as in an edible product.

Some states have enacted a standard of five nanograms or delta-9-THC per milliliter of blood.  Like the Texas law for alcohol in a DWI arrest, a court can find a person is impaired at the five nanogram level for marijuana just as in a 0.08 in an alcohol test.

Published on:

Montgomery County DWI Attorney
In the wake of more states legalizing the use and possession of marijuana people are scrambling to come up with a definition of what categorizes “driving while high.”  No one favors driving under the influence of marijuana or any other mind-altering drug.  The problem becomes what exactly is the definition of driving while high and how do we test for it?

In Texas, if you are pulled over by law enforcement due to some overt cause such as weaving or erratic driving, the officer is going to suspect something is up.  Currently, law enforcement uses field sobriety tests.  The problem is that the equipment law enforcement uses to check for alcohol like a breathalyzer does not work for impairment by other drugs, specifically not for marijuana or THC.  The only real solution at this point is to take the driver to the police station or hospital and draw blood.

Once police have the blood they can send it off to a lab to test if the person has marijuana in their system.  But there are no legal limits in most states including Texas.  Some states have set a standard at the limit of .5 milligrams of THC (the intoxicating substance in marijuana) per milliliter of blood.

Published on:

Texas DWI Lawyer
A new Texas bill that gives low level criminal offenders in Texas a second chance needs only to return to the house and then be signed by the governor.  The Texas House of Representatives passed the “Second Chance” bill 140-0.  Now, the bill has moved through the Texas Senate 28-3.  The bill would allow criminal offenders without previous convictions to protect their criminal history from disclosure to the public.

In Texas, we have only two crimes in which you cannot receive a deferred sentence.  Capital murder and driving while intoxicated.  Therefore, you can be charged with an offense like sexual assault and still get a deferred sentence and keep it off your record.  Not so with DWI.  The law used to allow for a DWI to fall off your record after ten years.  Not so anymore.  So, say you pick up a DWI in college, what can you do to get it off your record?  I get this question all the time.  Until now, the answer was “nothing.” The client will say, but that happened twenty years ago, why is it still haunting me?  Simple, up until recently a DWI conviction stayed on your record for life.

The new proposed section is 411.0736 which currently reads: “procedure for conviction; certain driving while intoxicated convictions.  What the bill states is that if you complete your sentence, including any term of confinement imposed and the payment of all fines, costs, and restitution imposed, may petition the court that imposed the sentence for an order of non-disclosure of criminal history records information under this section if the person:

Published on:

Montgomery County Controlled Substance Lawyer
In a monumental decision last week, the Supreme Court ruled that a citizen can sue for malicious prosecution for being jailed due to the police falsifying drug test results.

In Joliet, Illinois, police stopped Elijah Manuel for a traffic violation.  Manuel was subsequently searched. Law enforcement officers located a vitamin bottle containing several pills.  The police suspected that the vitamins were illegal drugs and decided to perform a field test on the substance.  The field test came back negative for any illegal or controlled substance.  Nevertheless, the police decided to go ahead and arrest Mr. Manuel and charge him with possession of a controlled substance with the intent to distribute.  Manuel was taken to the police station.  At the station an evidence technician tested the pills again and received the same negative result.  However, in his report he stated that one of the pills tested, “positive for the probable presence of ecstasy.”  One of the arresting officers stated in his report that, based on his “training and experience,” he “knew the pills to be ecstasy.”

Ecstasy or “Molly,” or MDMA is a synthetic drug that can alter your mood and your perception.  The chemical formula is similar to both stimulant and hallucinogenic drugs.  MDMA and its derivatives can produce distorted time and sensory perception, excessive emotional warmth, and feelings increased energy and pleasure.  The drug achieves these effects by altering the levels or dopamine, norepinephrine, and serotonin.  The effect of the drug can last anywhere from three to six hours.

Published on:

Tampering with Evidence
An interesting opinion was just released from the Texas Court of Criminal Appeals.  For those of you that don’t know, this is the highest court in the State of Texas that rules on criminal matters. The case is State v. Zuniga.  Zuniga was allegedly pulled over right in front of her own house for running a stop sign.  We assume the officer saw a bottle of prescription medication in plain view and Zuniga was not able to show a valid prescription.  In Texas, if the officer sees something in plain view that he believes is illegal, then he is going to be able to search the vehicle.  While handcuffed in the back of the police car, Zuniga moved her hands to her side, reached into her crotch area, and pulled something out with her hands cupped.  All this because supposedly, she knows the officer is watching her.  Seems more than a little odd, doesn’t it?    Next, she moves her hands toward her mouth, moves her head down, and apparently, the officer thinks she swallowed something.  What is this Ms. Houdini?

The officer then took Zuniga to the hospital where x-rays were performed and her stomach was pumped.  The hospital officials did not find any illegal substance nor a baggie that may have contained something.  Of note, the State of Texas didn’t test the defendant’s blood for any illegal substance or had the lab perform an analyses the contents of Ms. Zuniga’s stomach.

Ms. Zuniga was indicted for the Texas felony charge of tampering with physical evidence.  This offense is defined in the Texas Penal Code as:

Published on:

“That was in the past; I’ve paid my debt to society.” Criminal defense attorneys hear that quite a bit.  The truth of the matter is that your past counts.  A lot.  When a potential employer looks over your job resume’, do you think he or she considers the fact that you have been fired from your previous three jobs?  Of course they do. 

So what’s the big deal?  Well, anyone that keeps up with what is happening in criminal law in Conroe, Texas, or even the Nation sees myriad headlines such as, “Man Gets Life Sentence for Fifth DWI Conviction.”  The past is a good indicator of the future.  People tend to forget that little inconvenient fact.

So, how does your past affect you?  It could in many profound ways.  First off, if you are arrested for a crime in the counties that I practice in, which include Harris, Montgomery, Walker, Madison, Grimes, and Leon for example, then it can and will affect your bail.  First time criminal offenders usually have a trivial amount of bail.  Repeat offenders have a bail that rises steeply with each consecutive offense.  This is especially true of felonies.  Montgomery County tends to be more secretive with their bail amounts.  Walker, Madison, Grimes, and Leon Counties post their prospective bail amounts online.  For instance, if you are arrested on a first-degree offense in Walker County and it’s your first offense, the bail would typically be set at $20, 000.  A prior first offense gets you a $30,000 bond and more than one prior offense will land you at the $50,000 mark.  In addition, the underlying Texas Penal Code Statutes that you will be charged with are generally getting tougher.

Published on:

Criminal Defense Attorney
Citizens of Montgomery and Harris counties can sleep easier tonight now that a large shipment of high grade Feline Bam Bam has been taken off the street.  The Kingpin was quoted as saying, “they thought they had the biggest bust in Harris County.  This was the bust of the year for them.”  Except that it wasn’t.

Twenty-four-year-old Ross Lebeau was charged with possession of almost half a pound of methamphetamine.  On the evening of December 5, 2016, Lebeau was stopped for an unknown traffic offense.  Harris County Sheriff’s Officers used the old standby technique of “smelling a strong odor of marijuana emitting from Lebeau’s vehicle,” in order to initiate a search. Lebeau was cooperative and admitted he had a small amount of marijuana in the console of his vehicle.

In the process of doing an inventory of the vehicle (a search), the officers recovered a crystal-like substance wrapped in a sock.  Mr. Lebeau was questioned about the substance located in the sock and indicated that he had no clue as to what it could be. 

Published on:

Criminal Defense Attorney
It appears yet another lab is in hot water due to poor protocol.  The Austin Police Department crime lab has been in and out of the news for years now.  As you may recall, the DNA analysis section was actually shut down following claims of improper testing.  In 2012, the lab was found to have many contaminated samples and reagents in the lab.  One person was exonerated after a sample from a penis swab had been mixed with a vaginal swab of the victim.  Yes, you read that correctly.  It doesn’t get much worse than that.

Well now, the section that performs the blood analysis on DWI samples is under fire.  A scientist and former employee of the lab claims the lab’s blood alcohol analysis methods were not up to existing standards in the industry.  The former employee who now works at a different lab was hired to retest a sample from the APD crime lab.  She states that her analysis of the sample had a much different level of alcohol and reached a different conclusion about the intoxication of the individual.

A defense attorney and former chairman of the Texas Forensic Science Commission recalled a similar situation involving this crime lab.  The criminal defense attorney had a sample retested on behalf of a felony DWI client.  In Texas, when a person is charged with their third DWI they are elevated to a third degree felony which carries a sentence of two to ten years in the Texas Department of Criminal Justice Institutional Division and up to a $10,000 fine.  That’s the big house folks.  The sample tested by the DWI attorney came back with a reading that was off by 0.025.  In Texas, the legal limit is .08.  That creates a wide disparity in the prosecution of a Texas DWI case.  The difference between a .06 and a .10 is huge in the eyes of the law.  Officials believe that retesting of the sample from the questionable twelve-year period could cost over $14 million.

Published on:

marijuana possession
Chances are, if you are reading this, you or a loved one has probably been charged with marijuana possession or another drug offense in one of the counties in which I practice:  Montgomery, Walker, Grimes, Madison, and Leon Counties.  Although the law is the same wherever you are in Texas, the prosecutor you are dealing with will determine the severity of the sentence if you don’t have an experienced criminal defense attorney.  Why?  First, because everyone has a different opinion on marijuana, and second, because some people are still naïve enough to try and represent themselves.  But as we all know, thoughts on this matter are fluid and ever changing.

So, what’s new?  Well now there are twenty-six states legalizing weed in some shape or form.  As of last week, three more states will soon join the above twenty-six after passing new measures permitting the use of medical marijuana.  In addition, seven states and the District of Columbia adopted more expansive laws which will legalize marijuana for recreational use.   On Super Tuesday, California, Massachusetts, and Nevada all passed the use of recreational weed.  Notably, California’s measures will allow anyone twenty-one or older to not only possess up to one ounce of weed, but can also grow up to six plants in their home.  How is that going to work?  Only time will tell.  Last I checked, marijuana has changed a lot since I was a kid, not only being stronger with a higher THC content, more varied, and the plants can be gigantic.  THC is the psychoactive component of cannabis or marijuana.  In Nevada, adults will be allowed to possess up to one ounce of weed beginning New Year’s Day of this next year and similarly, Massachusetts will allow possession beginning on December 15.  Clearly, the states aren’t wasting any time.  Recreational use of marijuana in Maine narrowly passed but they are still recounting the ballots.  Other states have decriminalized the possession of small amounts of marijuana.

So, what’s going on in Texas?  Not much.  Although the state approved certain dispensaries to sell products with low level THC like cannabis oil, it’s been slow to start.  The program was supposed to start on January 10th of this year but the reality is that the first license for a dispensary won’t happen until June of 2017.