5 Things To Know About Heroin Arrests If You’re Using Heroin in Dallas

Caught with Heroin in North Texas

Heroin just keeps getting more popular here in our part of the country, and in all likelihood we’re going to see even more heroin use in the Dallas – Fort Worth area in 2016. We’ve discussed why that is in past posts; read them here if you’re interested in things like what drug cartels are operating in North Texas or how the DEA reports that heroin market is exploding in Dallas’ suburbs.

It’s not the job of a criminal defense attorney to preach about the evils of drug use or to scold clients on their life choices. The job of a Texas criminal lawyer is to help someone who is facing some serious life events because law enforcement and the criminal justice system seek to take away their freedom and maybe a sizable part of their assets, too.

• For those who are deciding to try heroin — say a suburban mother who can’t get enough of her prescription pain medication, or a college student who is offered a new kind of buzz at a party — they need to know what risks are involved with that decision.
• For anyone using heroin regularly here, as well as anyone sharing or selling heroin in the Dallas suburbs or elsewhere, they need to understand what can happen to them as well if they are caught with their product.

So, here’s a crash course in heroin from a Texas criminal law perspective.

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5 Things To Know About Heroin Before You Get Busted

1. Heroin Is Always A Felony Charge.

There’s no misdemeanor charge for heroin possession like there is for marijuana, for example. Under the Texas Penal Code, even a tiny bit of heroin can get you busted on a felony charge which brings with it the possibility of spending years of your life behind bars. Over 400 grams, and you’re looking at an enhanced 1st degree felony with the possibility of 99 years in prison and a $100,000 fine.

Heroin laws in Texas are tough. Under the Texas Controlled Substances Act, located in Chapter 481 of the Texas Penal Code, heroin is a “Penalty Group 1” drug. Texas Penal Code Sec. 481.102.

Heroin possession translates into several different levels of felony crimes, depending upon how much you have with you when you are caught.

The law defines the amount by grams. Think of it this way: 1 ounce is 28.349 grams, and 1 gram is 0.03527396 of an ounce. That’s practically nothing, right?

Michael Lowe’s Texas Penal Code Heroin Felony Chart by Grams and Ounces

• Anything less than 1 gram (or anything under 0.03527396 of an ounce)
  = state jail felony, punishable by up to 2 years in prison and a fine of $10,000
• 1 gram to 3.99 grams (or anything between 0.03527396 of an ounce and 0.1407431 oz)
  = 3d degree felony, punishable by 2 – 10 years in prison and a fine of $10,000
• 4 – 199 grams (or anything between 0.1410958 of an ounce and 7.019518oz)
  = 2d degree felony, punishable by 2 – 20 years in prison and a fine of $10,000
• 200 – 399 grams (or anything between 7.054792 ounces and 14.07431oz)
  = 1st degree felony, punishable by 5 – 99 years in prison and a fine of $10,000
• 400+ grams or more (or any amount of heroin over 14.10958oz)
  = enhanced 1st degree felony, punishable by 10 – 99 years in prison and a fine of $10,000.

Lesson Here: If you have any (ANY) amount of heroin in your possession, custody, or control, then you are operating at the risk of a felony arrest if you are caught with the drug by law enforcement.

2. Adults Are Treated Differently Than Juveniles When They Are Arrested In Texas.

We’ve discussed what can happen to minors who are arrested for having heroin in their possession here in Dallas or North Texas. See, “Juvenile Heroin Arrests: When Your Child is Busted for Heroin in Texas.”

Suffice to say, juveniles are children and theirs is a different trip through the state criminal justice system. The juvenile system has its own courts and its own way of doing things. However, notice that the Texas Penal Code does not have any age differences for heroin possession: if you are found with heroin, then you are committing a felony under Texas law no matter how old you are.

Adults are defined as anyone over the age of 17 years here in Texas. So, it’s possible for two kids at a party to be taken into custody by the police for heroin possession and one of them be arrested as an adult and the other to be held as a juvie with different consequences.

Taking a child into custody is not considered an arrest. Texas Family Code §52.01(b). This law protects the child, who can later say truthfully that they have never been arrested on things like job applications and college admission forms.

For more on the Texas Juvenile Justice System, check out the Texas Attorney General’s Juvenile Justice System Handbook.

3. Arrest and Charge – They’re Not the Same Thing.

Police officers who think that they have discovered crimes can take people into custody and arrest them. They can handcuff the person and take them to jail. The police officer must tell them of their basic rights at this juncture, as an accused person.

These are:

(1) the right to remain silent, and any statements he does make can be used against him in a court of law;
(2) the right to a lawyer, and to have an attorney appointed as their counsel if they cannot afford one;
(3) the right to have a lawyer with them when they are being questioned by the authorities.

This is the arrest process. It can last up to 48 hours, or two days.

Under the law, however, within 48 hours of being taken into custody (with its curtailing of freedom), the person must be brought before a criminal judge. It is at this point that the judge, presiding in a courtroom in their “Initial Appearance,” that charges are presented to the individual.

Charges are the official definition of what state laws are alleged by the authorities to have been violated by the individual. Specific sections of the Texas Penal Code, for example, will be referenced in the charges.

At the Initial Appearance, the judge is required to tell the person of the criminal charges he is facing and if there is a sworn statement supporting them (an affidavit). The judge must explain rights again, including:

(1) the right to remain silent, and any statements he does make can be used against him in a court of law;
(2) the right to a lawyer, and to have an attorney appointed as their counsel if they cannot afford one;
(3) the right to have a lawyer with them when they are being questioned by the authorities;
(4) the procedure on how to get a lawyer appointed and how to formally request an appointed attorney;
(5) that he has a right to end any interview by the authorities (police or prosecutors) at any time;
(6) that he has a right to an examining trial (which is an evidentiary hearing where the state must prove up probable cause for the arrest).

Charges aren’t filed now. In a heroin arrest, the prosecutor has 90 days from the date of the arrest to file charges against the individual by complaint, information, or indictment if the person can’t get bond and sets in jail. If the person is not in jail (because of bond or on personal recognizance), then the prosecutor literally has years before she has to file charges in the record.

4. Bail and Jail: When You Get Your Freedom Back After Being Taken Into Custody.

Bail can be set at the Initial Appearance. Bail is required in a heroin case because the court wants some insurance that the person will return to court and not run away if he or she is released from custody and given back their freedom after the hearing.

In Texas, if you aren’t facing capital murder charges, you have a right to be released on bail — if you can provide sufficient collateral for the bail.

The judge decides the bail amount. The defense attorney can request a “bail reduction hearing” if that amount is too high.

Bonds must be posted before the individual is freed from custody. There are “personal recognizance bonds” (PR Bonds) which may be allowed if the judge thinks they are appropriate. Here, no collateral is required from the person. Cash bonds are paid in full by the person. Bail bonds are provided through a bonding company. For more on bonds, read Michael Lowe’s article discussing when a defense attorney may be a better option to a bonding company.

5. Texas Law Isn’t the Only Heroin Law Out There; Heroin is Illegal Under Federal Drug Laws, Too.

All of the above information applies to a situation where someone in Dallas or Fort Worth or North Texas is arrested by state or local authorities. Heroin, however, is also against the law under the federal statutes. If someone is caught with heroin in their possession by a federal agent, say ATF or the FBI or the DEA, then federal laws will apply and they will proceed through the federal system. Different story altogether.

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For more about heroin and drug crimes, visit our resources page. Also see Michael Lowe’s Case Results and his in-depth article, “Top 10 Things To Know When Defending Texas Charges Of Manufacture Or Delivery Of An Illegal Substance.”