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Criminal Defense

Salvia Now an Illegal Substance Under Texas Controlled Substances Act

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In 2013, the Texas legislature passed a new law that changed the Texas Controlled Substances Act. As of September 1, 2013, Salvia is considered an illegal substance under the Texas Controlled Substances Act.

Salvia is a hallucinogenic herb that is popular among teenagers. The herb, which is commonly smoked, is easily accessible online and over the counter in many states to adults and children alike. Possession of Salvia is now included in Penalty Group 3 of the Texas Controlled Substances Act.

The newly adopted Section 481.104 of the Texas Controlled Substances Act states:

Penalty Group 3 consists of: Salvia divinorum, unless unharvested and growing in its natural state, meaning all parts of that plant, whether growing or not, the seeds of that plant, an extract from a part of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant, its seeds, or extracts, including Salvinorin A.

Therefore, possession of an unharvested Salvia plant growing in its natural state is legal, but possession of any part or derivative of the Salvia plant is criminally punishable. Possession of Salvia, like all Penalty Group 3 substances, is punishable as follows:

  • Less than 28 grams: Class A misdemeanor punishable by an optional fine of up to $4,000 and/or incarceration for up to one year
  • 28 grams or more, but less than 200 grams: Third-degree felony punishable by an optional fine of up to $10,000 and/or incarceration of between two and 10 years
  • 200 grams or more, but less than 400 grams: Second-degree felony punishable by an optional fine of up to $10,000 and/or incarceration of between two and 20 years
  • 400 grams or more: First-degree felony punishable by an optional fine of up to $50,000 and incarceration of between five and 99 years

If you have been charged with possession of an illegal substance, a Texas defense attorney at the law firm of Joseph P. Appelt can fight to protect your rights.

Criminal Defense

Top Drug Crime Defenses

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Drug offenses can be very serious charges, and they carry stiff punishment under both Texas and federal law. However, there are also a number of defenses available for drug charges, and the success of the government’s case in large part depends on how the evidence was obtained.

Here are a few of the defenses available:

Illegal search

The Fourth Amendment protects citizens against unreasonable searches and seizures and provides that a warrant shall not issue unless the police have probable cause. This basically means that the officer needs to have a valid reason to conduct the search and the warrant needs to specifically describe the place to be searched, the person involved and item to be seized.  If it doesn’t, the search may be illegal.  If a court rules that the search is illegal, any evidence that the police obtained through the search will be suppressed (not be allowed in court to prove the defendant’s guilt).

Invalid search warrant

Even if the police obtained a search warrant, that doesn’t mean that it is valid. In order to obtain a warrant, an officer needs to present a sworn affidavit to a judge and request a finding that there is probable cause to search this particular location for specific evidence. If the affidavit contains incorrect information, information from unknown individuals or informants, or if the descriptions of the search location or items are unclear, the search warrant can be challenged.

Errors in laboratory testing

The government has a very specific burden to present testimony from everyone who touched, processed or tested the drug evidence. If one link in this chain of custody is missing, the evidence will not be admissible in court.  Further, the testing procedures at many labs can be challenged.  If the court agrees that there is doubt as to whether the government properly handled the drugs, the charges can be dismissed.

Entrapment

This occurs when a government agent uses threats, fraud or some other type of undue influence to induce a defendant to commit a crime.

If you have been charged with a drug crime, consultation with an experienced San Antonio drug offense attorney will be invaluable to determine if any of these defenses are available to you to get the charges dismissed.