What Could Be The Sentencing Possibilities For A First Time Offender In Texas Possession Drug Free Zone?
What are the guidelines or average sentence for a first time offender, Texas, in a Drug Free Zone, Possession of Methamphetamine over 1 gram but less than 200? Thank You for your informed input.Any web links I could go to to research this? Thanks!
- Brainwave68Lv 51 decade agoFavorite Answer
On November 7, 2006, the US Department of Justice declared that November 30, 2006 be Methamphetamine Awareness Day
Penalty Group Examples of Drugs/Controlled Substances
1 Cocaine, heroin, methamphetamine, GHB, ketamine, oxycodone and hydrocodone.
Penalty Group 1
Weight Classification Penalty
Less than one gram
State jail felony
180 days to 2 years in a state jail and/or a fine of not more than $10,000
1 gram or more, less than 4 grams
2 to 10 years in a state prison and/or a fine of not more than $10,000
4 grams or more, but less than 200 grams
2 to 20 years in a state prison and/or a fine of not more than $10,000
200 grams or more, but less than 400 grams
5 to 99 years in a state prison and/or a fine of not more than $10,000
400 grams or more
Enhanced first-degree felony
10 to 99 years and a fine of not more than $100,000
Charging the drug-free zone is the most difficult and most important step in the process. There are four variables to account for to determine when and how to use the statute. The first is to determine which penalty group your controlled substance fits into and how much of the substance is involved. Next, what conduct has the defendant committed, i.e., possession, delivery, or possession with the intent to deliver? Third, what location will be alleged as the source of your drug free zone? Lastly, what distance from the source location is involved?
The first three variables are relatively easy. What kind of controlled substance is involved, its quantity, and the defendant’s conduct (possession or delivery) are the standard basis of any drug prosecution. Your charging instrument should read like any other possession or delivery case.
The drug free zone is where we run into some confusion. The notice of a DFZ is generally considered an enhancement provision and therefore may be given either in the indictment itself or by filing a separate notice with the trial court, similar to giving notice of intent to seek a deadly weapon finding. However, this is not true if the offense you are alleging is defined in either §481.134(b) or (d); to punish the state jail felony offenses listed in those subsections as 3rd-degree felonies, the DFZ must be alleged in the indictment7 because the courts have held that offenses that fit into the provision of subsections (b) or (d) are separate and distinct 3rd-degree felonies and not enhanced versions of the offenses listed in those sections.8
The same is true for the offense listed in subsection (e). Those offenses would otherwise be Class A misdemeanors but for the fact that the offense was committed within 1,000 feet of any real property owned, rented, or leased by a school or school board, the premises of a youth center, or on a school bus. In those cases, the allegation of the drug free zone must be set out in the indictment, as that element would be jurisdictional, in the same manner as alleging prior convictions to establish a felony Driving While Intoxicated. While no reported case has discussed this subsection for the same reasons and logic set forth by the courts concerning subsections (b) and (d) an offense pursuant to Subsection (e) would be a separate offense from one committed under Section 481.117(b), 481.119(a), 481.120(b)(2) or 481.121(b)(2) not only because they have increased punishment but also that that element vests the district with the jurisdiction to hear the matter.
I should note that subsections (b) and (d) are almost—but not quite—identical; the big difference is that “an institution for higher learning” is only a source location for felony delivery cases, NOT for felony possession or misdemeanor delivery or possession charges. (I’m not sure why state legislators determined that a college dorm shouldn’t be a drug-free zone for possession cases, but perhaps it is another reminder that they, too, have children in college.) In addition, swimming pools and video arcades are only a source location for low-level delivery charges, not for possession charges or higher delivery charges. (Your guess is as good as any for the reasoning behind that distinction.) But regardless of the logic—or lack of logic—behind these legislative quirks in the statute, prosecutors should be aware of them when charging these cases.
Be careful in charging your offense to allege what can actually be proven. Some difficulties have arisen where the allegation provided that the premises was “owned” by the institution or school, etc. Be sure that there will be evidence to establish ownership, rental status, or leasehold. While officer testimony is often sufficient, be prepared to call a school official or other person who can verify that the property is owned, leased, rented, or whatever you have alleged. Do not let the office form plead you into a position that you cannot prove. This part seems so simple, and it is, but it is often forgotten until trial.9
I know by now your eyes have glazed over and you are scratching your head. Welcome to the club! As I stated earlier
- olympeLv 43 years ago
could be waiting to plea it out to a misdemeanor with deferred judication. Any conviction will consequence in license to rigidity suspended. Get good lawyer.....you desire it deferred! That way you on no account get suspended.