Defending Against the Drug Free Zone Enhancement in Texas

 

 

 

If you are charged with any drug offense with a drug free zone enhancement in the State of Texas you are facing serious consequence.  The drug free zone is a device created by the Texas State Legislature designed to keep drug offenders away from children.  The legislature created a pretty wide array of drug free zones in order to do this.

 

Drug free zones include: all levels of schools up to college in cases of felony delivery, a broad definition of playgrounds, arcades, youth centers, daycare facilities, and youth sports facilities.  What actually constitutes a drug free zone and where it is located relative to the offense is complicated for purposes of the law and can be used in your defense.  That is why it is important to hire someone that is up to date on the drug free zone case law to defend you if you are charged with possession of a controlled substance or manufacture and delivery of a controlled substance in a drug free zone.  

 

A drug free zone enhancement can make many Class B drug misdemeanors Class A misdemeanors and many Class A misdemeanor drug offenses State Jail offenses, punishable by 6 months to 2 years in the State Jail and a fine not to exceed $10,000.

 

The drug free zone enhancement makes most State Jail Felony drug crimes Third Degree felonies, punishable by 2 to 10 years in the Texas Department of Corrections and a fine not to exceed $10,000.  

 

The drug free zone enhancement makes most manufacture and delivery of a controlled substance charges, otherwise punishable as Second Degree Felony offenses, punishable as a First Degree Felony.  First Degree felonies are punishable, by 5 years to life or 99 years in the Texas Department of Corrections and a fine not to exceed $10,000.

 

The drug free zone enhancement increases the minimum punishment by five years and doubles the fine for most drug crimes that can be filed as a Third Degree Felony or above without a drug free zone enhancement.  This includes a charge of simple possession of a controlled substance more than one gram less than four grams in a drug free zone.  This would make the range of punishment for this crime 7 to 10 years in the Texas Department of Corrections with a fine not to exceed $20,000.

 

The maximum period of community supervision for an offense contained in Chapter 481 of the Health and Safety Code is five years, however, so if the defendant was placed on community supervision, the sentence would be to 7 to 10 years in prison suspended for a period of a maximum of 5 years of community supervision. 

 

Making matters even more complicated, however, if a defendant has a prior conviction of a manufacture and delivery in a drug free zone, and he or she is currently charged with the same in a drug free zone, the current offense is a 3g offense, and the defendant is not eligible for community supervision.

 

The drug free zone enhancement also requires that punishments be stacked.  This mean if a defendant is charged with two crimes, for instance burglary of a habitation and possession of a controlled substance in a drug free zone, the sentences must be stacked and cannot run concurrent.  The sentences must run consecutive even if it is with another drug offense.

 

Another horrifying aspect of the drug free zone is that if a person is convicted of drug offense involving a drug free zone and is serving time in the Texas Department of Corrections, he or she must serve the first 5 years of his or her sentence day for day with no good time work time.  This means even if someone were to be sentenced to a minimum of 7 years on a possession of a controlled substance, one to four grams in a drug free zone charge, he or she would serve at least 5 of those 7 years.

 

To give an example of how this plays out in real life, I had a client who was charged with manufacture and delivery of a controlled substance in a drug free zone.  The drug was a schedule one drug.  The amount was over 4 but less than 200 grams, so on its face it was a First Degree Felony.  It was alleged that offense occurred in a drug free zone so my client was facing 10 years to life or 99 in prison and a fine not to exceed $20,000.  We were able to get the state to waive the drug free zone enhancement, and plead my client to the lesser included charge of simple possession of a controlled substance making it a Second Degree Felony.  In addition, we were able to get my client some back time on a previous case even though he had not yet been charged on the case we are currently discussing.  Ultimately, he settled for 5 years in the Texas Department of Corrections, but without the drug free zone enhancement, he will eligible for parole after he serves ¼ of his time rather than at least 5 years, which would be the case if he plead to the minimum 10-year sentence on the First Degree Felony.  It should be noted that my client had committed this offense prior to being sent to prison on an unrelated charge but was not charged with the offense until he was released from prison.