Possession of a Dangerous Drug

The Texas Dangerous Drug Act is found in Chapter 483 of the Texas Health and Safety Code and Texas Health and Safety Code § 483.001(2) defines a dangerous drug as a device or a drug that is unsafe for self-medication and that is not included in Schedules I through V or Penalty Groups 1 through 4 of Chapter 481 of the Texas Health and Safety Code (otherwise known as the Texas Controlled Substances Act). A dangerous drug is a device or a drug that bears or is required to bear the legend:

  • “Caution: federal law prohibits dispensing without prescription” or “Rx only” or another legend that complies with federal law; or
  • “Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian.”
 

A person cannot possess a dangerous drug unless they obtain the drug from a pharmacist. Examples of dangerous drugs commonly include Xanax and Valium.

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Possession of a Dangerous Drug Defense Lawyer in Denton, Frisco, Lewisville, Flower Mound, TX

Were you or your loved one arrested for possession of a dangerous drug in Denton? Do not wait to seek legal representation. The Law Offices of Richard C. McConathy defends people facing all kinds of drug charges in Texas and can fight to help you try to get your criminal charges reduced or dismissed.

Call (940) 222-8004 or contact the Law Offices of Richard C. McConathy today for a consultation about your alleged offense in Denton, Frisco, Lewisville, Flower Mound, and surrounding areas of Denton County, Texas. We can help you better understand the nature of your charges and also examine your possible defense options.

Possession of a Dangerous Drug Charges in Denton

Under Texas Health and Safety Code § 483.041(a), a person commits a possession of a dangerous drug offense if they possess a dangerous drug unless they obtain the drug from a pharmacist acting in the manner described by Texas Health and Safety Code § 483.042(a)(1) or a practitioner acting in the manner described by Texas Health and Safety Code § 483.042(a)(2). Texas Health and Safety Code § 483.042(a)(1) provides that a person commits an offense if they deliver or offer to deliver a dangerous drug, unless:

the dangerous drug is delivered or offered for delivery by a pharmacist under:

  • a prescription issued by a practitioner described by Texas Health and Safety Code § 483.001(12)(A) or (B);
  • a prescription signed by a registered nurse or physician assistant in accordance with Subchapter B, Chapter 157, Occupations Code; or
  • an original written prescription issued by a practitioner described by Section 483.001(12)(C);  and
 

a label is attached to the immediate container in which the drug is delivered or offered to be delivered and the label contains the following information:

  • the name and address of the pharmacy from which the drug is delivered or offered for delivery;
  • the date the prescription for the drug is dispensed;
  • the number of the prescription as filed in the prescription files of the pharmacy from which the prescription is dispensed;
  • the name of the practitioner who prescribed the drug and, if applicable, the name of the registered nurse or physician assistant who signed the prescription;
  • the name of the patient and, if the drug is prescribed for an animal, a statement of the species of the animal;  and
  • directions for the use of the drug as contained in the prescription;
 

Texas Health and Safety Code § 483.042(a)(2) provides that a person commits an offense if they deliver or offer to deliver a dangerous drug, unless:

the dangerous drug is delivered or offered for delivery by:

  • a practitioner in the course of practice;  or
  • a registered nurse or physician assistant in the course of practice in accordance with Subchapter B, Chapter 157, Occupations Code; and
 

a label is attached to the immediate container in which the drug is delivered or offered to be delivered and the label contains the following information:

  • the name and address of the practitioner who prescribed the drug, and if applicable, the name and address of the registered nurse or physician assistant;
  • the date the drug is delivered;
  • the name of the patient and, if the drug is prescribed for an animal, a statement of the species of the animal;  and
  • the name of the drug, the strength of the drug, and directions for the use of the drug.
 

Texas Health and Safety Code § 483.041(b) establishes that a person commits an offense if the person possesses a dangerous drug for the purpose of selling the drug. Texas Health and Safety Code § 483.041(c) states that Texas Health and Safety Code § 483.041(a) does not apply to the possession of a dangerous drug in the usual course of business or practice or in the performance of official duties by the following persons or an agent or employee of the person:

  • pharmacy licensed by the board;
  • practitioner;
  • person who obtains a dangerous drug for lawful research, teaching, or testing, but not for resale;
  • hospital that obtains a dangerous drug for lawful administration by a practitioner;
  • an officer or employee of the federal, state, or local government;
  • a manufacturer or wholesaler licensed by the Department of State Health Services under Chapter 431 (Texas Food, Drug, and Cosmetic Act);
  • a carrier or warehouseman;
  • a home and community support services agency licensed under and acting in accordance with Chapter 142;
  • a licensed midwife who obtains oxygen for administration to a mother or newborn or who obtains a dangerous drug for the administration of prophylaxis to a newborn for the prevention of ophthalmia neonatorum in accordance with Section 203.353, Occupations Code;
  • a salvage broker or salvage operator licensed under Chapter 432; or
  • a certified laser hair removal professional under Subchapter M, Chapter 401, who possesses and uses a laser or pulsed light device approved by and registered with the Department of State Health Services and in compliance with department rules for the sole purpose of cosmetic nonablative hair removal.
 

Possession of a Dangerous Drug Penalties in Texas

Possession of a dangerous drug is a Class A misdemeanor. A conviction is punishable by up to one year in jail and/or a fine of up to $4,000.

Texas Health and Safety Code § 483.041(e) states that it is a defense to prosecution for an offense under Texas Health and Safety Code § 483.041(a) that the alleged offender:

was the first person to request emergency medical assistance in response to the possible overdose of another person and:

  • made the request for medical assistance during an ongoing medical emergency;
  • remained on the scene until the medical assistance arrived; and
  • cooperated with medical assistance and law enforcement personnel; or
 

was the victim of a possible overdose for which emergency medical assistance was requested, by the alleged offender or by another person, during an ongoing medical emergency. 

The defense to prosecution provided by Texas Health and Safety Code § 483.041(e) is not available if:

  • at the time the request for emergency medical assistance was made:
  • a peace officer was in the process of arresting the alleged offender or executing a search warrant describing the alleged offender or the place from which the request for medical assistance was made; or
  • the alleged offender is committing another offense, other than an offense punishable under Section 481.115(b), 481.1151(b)(1), 481.116(b), 481.1161(b)(1) or (2), 481.117(b), 481.118(b), or 481.121(b)(1) or (2), or an offense under Section 481.119(b), 481.125(a), or 485.031(a);
  • the alleged offender has been previously convicted of or placed on deferred adjudication community supervision for an offense under this chapter or Chapter 481 or 485;
  • the alleged offender was acquitted in a previous proceeding in which the alleged offender successfully established the defense under that subsection or Section 481.115(g), 481.1151(c), 481.116(f), 481.1161(c), 481.117(f), 481.118(f), 481.119(c), 481.121(c), 481.125(g), or 485.031(c); or
  • at any time during the 18-month period preceding the date of the commission of the instant offense, the alleged offender requested emergency medical assistance in response to the possible overdose of the alleged offender or another person.
 

Possession of a Dangerous Drug Resources in Denton County

Kelly v. State, No. 09-09-00151-CR (Tex. App. Apr. 14, 2010) — A jury convicted Terry Keith Kelly of misdemeanor offenses of driving while intoxicated (DWI), possession of a dangerous drug (carisoprodol), and carrying an illegal weapon. The three cases were consolidated for trial, and the jury assessed Kelly’s punishment at 180 days in jail for the DWI, one year for the drug possession offense, and 180 days for the weapons offense. Kelly appealed each conviction. A review of the record revealed the evidence was both legally and factually sufficient to support the verdict. Kelly admitted that he possessed carisoprodol. Rather than being in a labeled prescription bottle, the carisoprodol was contained in a blue bottle in his boots, along with a baggie containing pills. Kelly contended he had a prescription for the drug, but the bottle had no prescription label on it. Though Kelly stated he filled the prescription once a month, he could not name his doctor. Kelly did not call the pharmacist or a physician to testify that Kelly had a prescription for the pills. Kelly testified that the reason the pills were stuffed in his boots was because he was in the process of gathering evidence for his work for Officer Stacy Chambers. However, Chambers testified Kelly did not work for him or the sheriff’s department and had never done so. On this record, the jury could reasonably conclude that Kelly had no prescription for the pills stuffed in his boots in an unmarked bottle and in a baggy. The evidence was legally and factually sufficient to support the conviction for illegal possession of a dangerous drug and the judgment was affirmed.

State v. Copeland, 501 S.W.3d 610 (Tex. Crim. App. 2016) — Shirley Copeland was charged with possession of a dangerous drug after police searched the vehicle she was in and found prescription pain medication in a plastic bag. She filed a motion to suppress, arguing that the search of the car was illegal. The trial court granted the motion and sua sponte issued findings of fact and conclusions of law. This case represented the State’s third appeal from the trial court’s ruling granting the motion to suppress. The State’s initial appeals focused on whether the police had the consent of the driver and Copeland to search the vehicle. In the first appeal, the Court of Criminal Appeals of Texas held that Copeland could not deny consent for police to search the vehicle when the driver and registered owner of the vehicle did consent to the search. In the next appeal, the Court of Criminal Appeals of Texas held that the State did not procedurally default its argument at trial or on appeal that the driver freely and voluntarily gave his consent to search his vehicle. The Court of Criminal Appeals of Texas then remanded the cause again, instructing the court of appeals to determine if there was an alternative theory of law upon which to uphold the ruling of the trial court. Specifically, the Court of Criminal Appeals of Texas noted that, in her motion to suppress, Copeland argued that the length of her detention was unreasonable but that the State did not challenge that argument on appeal. On remand, the court of appeals held that the State procedurally defaulted the length-of-detention issue. It reasoned that, because the State argued at trial that the length of Copeland’s detention was reasonable, the issue was a theory applicable to the case, and as a result, the State was obliged to make that argument on appeal or forfeit it through inaction. The State appealed, and the Court of Criminal Appeals of Texas exercised discretionary review power to determine whether the court of appeals erred when it held that the State procedurally defaulted the length-of-detention issue, and whether the court of appeals properly performed the analysis instructed by this Court. Because the Court of Criminal Appeals of Texas agreed with the court of appeals that the State procedurally defaulted the length-of-detention issue on appeal, it affirmed the judgment of the court of appeals.

Find A Denton County Defense Attorney for Possession of a Dangerous Drug Charges | Law Offices of Richard C. McConathy

Were you or your loved one arrested for possession of a dangerous drug in Denton or a surrounding area of Denton County? Make sure to get in touch with The Law Offices of Richard C. McConathy as soon as possible. Our firm knows how to aggressively defend people against every type of drug charge.

Contact the Law Offices of Richard C. McConathy today at (940) 222-8004 for a consultation about your alleged offense in Denton, Frisco, Lewisville, Flower Mound, and surrounding areas of Denton County, Texas.