If you have been charged with manufacture or delivery of a controlled substance in the State of Texas, this is always a serious allegation. There are two kinds of drug charges, manufacture and delivery and also possession. Manufacturing and delivery is a charge that is more serious than simple possession for personal use. The Texas statute, located in the Texas Health and Safety Code, is broad in its scope. The law that penalizes two kinds of conduct. It is illegal to manufacture a controlled substance, as well as possession with intent to deliver. You don’t have to get caught in the act of delivering a controlled substance, or actually deliver or transfer the substance. Whether or not you feel like the case against you is strong or weak, there are many ways a skilled criminal defense attorney can obtain a favorable result, even in cases that seem hopeless to you. If you are charged with manufacturing or delivery of a controlled substance, you need to give serious attention to consulting with and retaining a skilled and thorough criminal defense attorney. Felony charges are serious business, and the penalties and the consequences of a criminal conviction for a felony drug charge are severe and can be long lasting.
What Will Happen To You?
There is no way to determine what the outcome of your case will be from a webpage. This page is meant to provide basic information and discuss some finer points of this charge. If you are charged for this crime, it can no doubt cause stress and anxiety. To discuss the specifics of your case, call my office and set up an appointment. Talking about your case will give you some answers, which will alleviate some of the stress and anxiety. I promise you. So to begin with, manufacture or delivery of a controlled substance is a felony in Texas. The level of felony charge will depend on both the amount of the amount of the controlled substance and as well as the kind of substance. There are four levels of felony charges. First degree, second degree, third degree, and state jail felonies. The ranges of punishment for all of these levels are detailed below in the statute. The penalties for manufacturing and delivery are outlined in Chapter 481 of the Texas Health and Safety Code. The types and kinds of controlled substances are listed there as well. And there are many types and kinds of controlled substances. However, marijuana is not considered a controlled substance. There are many aspects to this criminal charge that will be expanded in greater detail below. If you or a family member have been charged with manufacture or delivery of a controlled substance in any County in Texas, this is a criminal allegation not to be taken lightly.
What Do Manufacture and Delivery Mean?
These terms are defined in Chapter 481 of the Texas Health and Safety Code. Sometimes when police discover controlled substances in the possession of a person, in their car, or in their home, it is not always clear whether that person was selling or distributing, or simply using the substance for personal use. Law enforcement will be looking for things like how the substance is stored—for example, is there one container indicating personal use, or are several smaller containers perhaps indicating distribution? Police will be looking for other items as well such a scales for weighing and separating. Here are the definitions for Manufacture and Delivery from the Health and Safety Code:
“Manufacture” means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance other than marijuana, directly or indirectly by extraction from substances of natural origin, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis and includes the packaging or repackaging of the substance or labeling or relabeling of its container. However, the term does not include the preparation, compounding, packaging, or labeling of a controlled substance:
- By a practitioner as an incident to the practitioner’s administering or dispensing a controlled substance in the course of professional practice; or
- By a practitioner, or by an authorized agent under the supervision of the practitioner, for or as an incident to research, teaching, or chemical analysis and not for delivery.
“Delivery” means to transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship. The term includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia.
These terms cover both creating a controlled substance as well as providing the substance to another person. Note that there does not have to be any money exchanged or even an actual sale. As noted above, many of these charges cover possession with intent to deliver. This charge arises when police discover the controlled substances before delivery has been made, and often draw conclusions about intent to deliver based on individual packaging or other evidence.
What are Penalty Groups?
All of the controlled substances are divided and grouped into four categories. These categories are referred to as penalty groups. There are different penalties for each group and the most severe penalties are in Group 1 and the least severe penalties are in Group 4. There are many, many controlled substances. The substances considered most dangerous and harmful are in Group 1. The substances in Group 1 are deemed to have little or no medical value and a very high potential for abuse. Many of the heavy substances that immediately come to mind when people think about illegal drugs are in Group 1. The substances in Group 1 consist of opiates, opium derivatives such as morphine and heroin as well as their isomers, esters, ethers, and salts. Group 1 also contains cocaine, methamphetamine, and ketamine. Group 2 consists of central nervous system stimulants such as amphetamines like Adderall, as well as hallucinogens such a mescaline and psilocybin that are not considered to be as habit forming as Group 1 substances. Penalty Group 3 substances consists of central nervous system depressants. Many are prescription drugs used to treat anxiety. These include benzodiazepines such as alprazolam and diazepam. Alprazolam (known also by its brand name, Xanax) is used to treat social anxiety and generalized anxiety, although it has a high potential for abuse and requires a prescription. Group 4 deals with compounds or mixtures that include substance such as codeine, which by itself is a Penalty Group 1 substance, but also contain active nonnarcotic ingredients that lend medical value.
What are the Criminal Penalties for Manufacture or Delivery?
The criminal penalties will vary depending on which group the controlled substance falls under. Below is the statute for manufacturing or delivery of a substance in Penalty Group 1 because this is the most commonly charged penalty group. The implications of the law will be discussed below. The potential punishments of the other penalty groups vary slightly.
Texas Health and Safety Code. Chapter 481.112.
- A person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 1.
- An offense is a state jail felony if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants and dilutants, less than one gram.
- An offense is a felony of the second degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants and dilutants, one gram or more but less than four grams.
- An offense is a felony of the first degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants and dilutants, four grams or more but less than 200 grams.
- An offense is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants and dilutants, 200 grams or more but less than 400 grams.
- An offense is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 15 years and a fine not to exceed $250,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 400 grams or more.
The penalties rise with the amount of the weight, including adulterants and dilutants (discussed below). Amount is expressed in terms of weight in grams. The lowest charge which criminalizes amounts under one gram is a state jail felony. One gram is a pretty small amount. Different district attorneys offices across the State of Texas have different policies regarding how much of a substance constitutes a usable amount. Some Counties will indict state jail felonies for amounts as low as three one-hundredths of a gram (.03 grams.) The most severe charge is a first degree felony, and that is for amounts that are over 400 grams. Also, if a child younger than 18 years old was present on the premises where the offense was committed, the offense increases by one degree.
What Do Adulterants and Dilutants Mean?
Adulterants and dilutants refer to materials, elements, or ingredients that change or increase the bulk or quantity of a substance. Adulterate means to debase or make impure. Dilute means to thin, make weaker, or reduce the strength. What the Texas Health and Safety Code tells us is that if there is material added that is not a controlled substance to a chemical compound that is a controlled substance, this does not matter. It does not matter if the added material impacts the chemistry or the substance. This can be best illustrated by some examples. Sometimes the purity of drugs is is purposely compromised. Drugs are cut or altered to save money. For instance, baking soda is added to cocaine. Another example is edibles made with psychoactive chemicals derived from marijuana. Even though marijuana is not a controlled substance, imagine marijuana brownies. The psychoactive substance in marijuana is called tetra hyrdro cannabinol, and this is a controlled substance. Marijuana brownies or cookies contain the controlled substance tetra hydro cannabinol, but marijuana brownies also contain flour, sugar, chocolate, eggs, and other ingredients. The aggregate weight of the flour, the sugar, the chocolate, the butter, and the eggs could all be considered adulterants or dilutants. As absurd as it may sound, the aggregate weight of all the brownies could be weighed and that weighted amount could dictate the charge.
Why Do You Need a Skilled Attorney?
Defending a drug charge can be a serious and challenging ordeal for everyone involved. Facing theses charges is stressful. Even though it is not the 1980s anymore and drugs do not have the moral stigma that they once had. Decades later, these cases are still very serious and they are pursued aggressively by law enforcement and by prosecutors. These cases are taken seriously by judges. This is still Texas. When someone who is facing a drug charge, the case must be thoroughly investigated and analyzed. There are many ways to secure a favorable result. These results include getting a not guilty verdict, a reduced charge, or a dismissal. A victory could mean getting admitted into a diversion program. A victory could mean avoiding a conviction. Or it could mean probation instead of prison. A central question in any drug case, possession or manufacturing and delivery, is the legality of the search. The 4th amendment to the United States Constitution protects all of us against unreasonable searches and seizures. It requires that police have probable cause to conduct a search or an arrest. This does not include hunches or guesswork on the part of law enforcement. Sharp police officers may have good intuition that results in arresting people who are guilty of committing crimes. However, this is not enough to satisfy the Fourth Amendment. If you have been arrested for a manufacturing or delivery charge, call me to discuss all facets of your case.