In almost all criminal cases, physical evidence is very important. DWI cases are much harder to prove without valid chemical tests, assault cases (especially felony assault cases) are difficult to win without solid medical evidence, and the list goes on.
Such evidence is even more important in drug cases. Prosecutors can win DWI refusal cases and assault cases that lack compelling medical records. But drug cases are almost impossible to win without physical evidence, even if the defendant confesses to the crime.
Was the Substance Illegal?
This question may seem superfluous. And in many cases, it is a rather pointless inquiry. But in some other drug cases, the answer to this question makes all the difference.
Possession of synthetic marijuana may be illegal under either state or federal laws. Yet this substance is very popular, and so scientists are constantly creating different strains of marijuana. If the defendant possessed a type of synthetic marijuana that was not on the prohibited list at the time of the arrest, the defendant cannot be guilty of drug possession.
Chemical tests also matter. In police reports, officers usually say that they “field tested” the substance and determined that it was heroin, cocaine, or whatever. But that field tests often consists of little more than a visual inspection. A subsequent chemical test, especially one performed by independent experts, often yields different results. Sometimes, the substance was something else entirely. Other times, the substance contained so many adulterants or dilatants that it did not qualify as an illegal substance.
Meth-making ingredients are sometimes an issue as well. Most of these ingredients are either not illegal to possess or only illegal if there are certain aggravating circumstances.
Difference Between the Pleadings and the Proof
Drug possession cases almost always involve specific amounts. For example, possession of 0-2 ounces of marijuana is a Class B misdemeanor, 2-4 oz is a Class A, 4 oz to 5 lbs is a state jail felony, and so on. If the state cannot produce at least two ounces of marijuana at trial, the state cannot prove a Class B misdemeanor. There is a variance between the pleadings and the proof.
Apropos of nothing for purposes of this blog, that 0-2 requirement is one thing that makes Texas marijuana laws so harsh. In Tarrant County, possession of marijuana residue can mean six months in jail.
Sometimes, judges allow prosecutors to make trial amendments in these situations, and the case keeps moving forward. But other times, there is a fatal variance, and prosecutors must go back to the drawing board and start over.
Without the right amount of the right drugs, prosecutors cannot get convictions. For a free consultation with an experienced criminal defense attorney in Fort Worth, contact Herreth Law. We routinely handle cases in Tarrant County and nearby jurisdictions.
