Felony Drug Charges If You Send It By Mail? It Could Happen to Anyone
I’m going to start this article a little different, by sharing a story and example of how a simple act of mailing some controlled substances and recreational drugs (or paraphernalia) can result in an upgrade from a standard misdemeanor charge, to a felony offence.
This example is not reflective of a case or client I have worked with, but a matter of discussion for educational purposes, and to help increase public awareness of simple acts that can increase the severity and consequences of a drug charge in Texas. And it really can happen to anyone.
A professional man who lived in Texas, worked as a contractor in Colorado. He had an elderly sister with Parkinson’s Disease, who was not experiencing any kind of relief from her medical treatment or prescription medications. On a trip to a state with legalized recreational marijuana, she tried using cannabis oil through an inhaler. For the duration of her trip, she found that her shaking and symptoms subsided greatly, and her appetite improved.
The next trip that the professional made to Colorado, he purchased cannabis in the raw leaf (bud) form as well as cannabis oil in four vapes. He also purchased a vape start-up kit, and some THC free cannabis oil for therapeutic purposes.
When the professional returned home, he picked up some packaging materials and bundled up the ‘gifts’ that he had purchased his sister, including all the items mentioned above. He wrapped the box carefully, and put his sister’s address on it, and his own return address. And dropped it off at a courier location, to expedite the box to his family member.
The staff in the courier office noticed a smell. They contacted the police to report a suspicious package that they believed to contain cannabis, from the easily identifiable odor emitting from the package. When the police arrived, they opened the package and confirmed the contents inside were prohibited controlled substances.
The police took the man into custody, and he was charged with possession of cannabis and manufactured cannabis oil in amounts greater than 2 ounces.
The professional was surprised at his arrest, given that he believed he had legally purchased the medicinal quality cannabis in Colorado. Which he did. He also misunderstood amendments to the Texas Health and Safety Code § 487.001, which allows for medical quality cannabis to qualifying patients who have Intractable epilepsy (not Parkinson’s Disease). And his sister, a Texas resident, did not qualify for approved and legalized medicinal cannabis as part of her treatment.
The professional was charged with a Class B misdemeanor (2-4 ounces) and is pending his court hearing in Texas. This was his first drug related charge, and he had no history of previous felonies or misdemeanor charges. He was also charged with distributing paraphernalia.
As you can imagine, the defendant’s case will be a difficult one, but what is benefiting him is the fact that it was not his intention to break state or federal laws. He sincerely believed he was following legal steps to provide relief for his sister, with no intention to distribute or accept payment in return for the goods that he provided her.
The Penalties for Drug Distribution (Without Proof of Sale) in Texas
In this particular case, the defendant did not willfully break the law. He had read about medicinal cannabis, and he was not accepting financial payment for the goods. It was an act of compassion for his sister, who was suffering a traumatic chronic disease that was impeding her ability to work and live. After all, he clearly labeled his own return address and name on the parcel.
Because cannabis oil is a manufactured product, it carries even more significant legal penalties. The law enforcement community wants to stop manufacturing of cannabis products, and that includes all forms from vape oil to distillate (also called ‘wax’ or ‘honey’).
The penalties for drug possession are as follows:
- < 2 ounces is a Class B misdemeanor.
- 2-4 ounces is a Class A misdemeanor
- 4 ounces to 5 lbs. is a State Jail felony charge.
- 5 lbs to 50 lbs. is a 3rd degree felony charge.
- Over 2,000 lbs. carries a minimum sentence of 5-99 years incarceration, and a $50,000 fine.
It is important to note that some districts in Texas allow first time offenders to complete a drug rehabilitation course, and probationary period (generally six months in duration) and a fine of $2,000 for the first offense. Dallas is one of those districts, providing the Dallas Initiative for Diversion and Expedited Rehabilitation and Treatment (DIVERT Court).
The benefit of DIVERT Court for Dallas residents, is access to education and learning experience, and the ability to have the original charge(s) dismissed. After which time citizens who have successfully completed DIVERT Court can file to have the offense(s) expunged from their record.
State Parks and The Federal Mail: When a Misdemeanor Becomes a Felony
Referring back to our original story and discussion, what would have happened to the professional if he had dropped that package into a U.S. Postal Service box instead? It was an option that he considered, and his choice helped him reduce the punitive outcome of his actions.
How big is the problem of recreational drugs sent as ‘gifts’ or as part of systemic drug trafficking through the U.S. Postal Service? In a recent article on The Washington Post, the spokesperson for USPS stated that the “Postal Inspection Service achieved a 1000% increase in international parcel seizures, and a 750% increase in domestic parcel seizures”. That was during the years 2016 through 2018.
Mailing marijuana is illegal, because it violates Federal Laws, regardless of the State laws regarding medicinal use or recreational use of controlled substances. And once you decide to drop that parcel in the mail, you could be charged in both federal and state courts.
You can also be charged with other acts including:
- Trafficking cannabis or other controlled substances.
- Misuse of the federal mail service.
- Mailing of injurious articles.
- Conspiracy (if you are mailing to more than one person).
How different are federal penalties versus state drug charge outcomes? Mailing cannabis or another controlled substance in an amount less than 50 kilograms, carries a maximum penalty of up to five years in prison and a fine up to $250,000. This is for individuals who have no criminal record and are not charged with additional federal crimes. A second offense can carry up to ten years of incarceration and a fine of up to $500,000.
The USPS is not the only way a misdemeanor state charge can be quickly upgraded to a felony Federal offense; if you are arrested in a State Park, that is under Federal jurisdiction. This is even true for other states that have permitted both recreational and medicinal cannabis use. Once you are on Federal property, you are subject to the penalties of a federal charge.
Why are federal charges serious? For the average case, it means larger financial fines and more punitive minimum sentences. Federal charges are levied by highly proficient and trained prosecutors, and defense requires an attorney licensed to practice in federal court.
I hope you’ve gained some new and valuable insights into federal and state jurisprudence, legislation and where small choices can create significant legal hardship. Are you facing a similar charge right now? Contact Britt Redden to schedule your free legal consultation.
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