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Messina Madson & Kendall Castello, MC Criminal Law Dec. 22, 2020

Even a quiet holiday celebration can have serious partying pitfalls, especially when it comes to drug possession. Make no mistake, you can be charged with possession of drugs that are not yours.

Possession in Texas is defined as “care custody or control” and can include someone in proximity of the narcotic who does not own or use the drug. In fact, two people can be arrested for possession of the same contraband.

For example, if drugs are found in the middle console of a car stopped at a traffic light, both the driver and the passenger could have placed them there. Both can see them and pick them up. Close proximity to the narcotic is sufficient grounds to arrest and charge both the driver and passenger.

If arrested, you should approach each and every interaction with law enforcement with the goal of politely asserting your rights.

  • You do have a legal duty to provide your name and identification; however, you can tell an officer that you would feel more comfortable with any further questions being directed to your attorney.

  • You do not have to give an officer consent to search your car.

If an arrest does result, your next focus should be clearing your name. Finding an attorney as soon as possible is a critical step—the sooner, the better. An attorney can help in the following ways:

  • Guiding the client’s next steps to help mitigate the charge

  • Contesting the legality of the search made by law enforcement

  • Proving ownership of the car to help reveal true culpability

  • Pointing you toward frequent testing to help prove that you live drug free

  • Addressing an addiction or any problems related to the charge

  • Fighting the case in court, as needed

A quality attorney also should explore ways to keep the criminal charge off your record or have the record sealed. This is one of the most important steps to set you up for future success. One of the strongest tools to clear the arrest off your record quickly and completely is a diversion program. Pre-trial diversion can play a key role in mitigating the effects of your charge.

Pre-trial Diversion Programs

In the case of a non-violent criminal offense, like drug possession, your attorney should help you identify a specified reform program that will allow your case to be “diverted” out of the criminal courts. When you complete the diversion program, the case is dismissed and becomes eligible for immediate expungement. This means all records all sealed, even to law enforcement, and can never be referenced in your future. However, they often have deadlines for application and the clock starts at the moment of arrest.

Diversion is a “predisposition” program, which means that you enter the program while the case is still open (before a plea bargain or trial). Upon completion of the program, your case is dismissed, and you can file for expungement. It’s important to note, however: If you fail to complete the program, you can be placed back into the usual process in the courts.

Through pre-trial diversion, you not only have the opportunity to clear your criminal record, you also can learn new skills; establish healthy, productive habits; and overcome addictions—all of which help you avoid future interactions with law enforcement. Diversion programs can offer a clean record and a fresh start by addressing any underlying issues that may have led to a criminal charge. The goal is to remove arrested individuals from the criminal justice system altogether.

A good attorney should help in the following ways, so make sure to find out which services are covered in the legal fees:

  • identifying the pre-trial diversion program and your eligibility

  • helping you through the process of application

  • filing for expunction, upon completion of the program

At MC Criminal Law, we want to help you leave behind any criminal entanglement and get your life back on track. Good legal counsel can help you reclaim a healthy, productive life.


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