Defending a drug case in Texas can be slightly different from defending other criminal charges. Drug cases are what are commonly referred to as a victimless crime. That simply means there is no victim who will testify about what happened. In a robbery case, for example, the victim is the person who was robbed. They will generally testify about what happened, and in most cases identify the defendant. Sometimes other evidence will be used to establish who committed the crime, such as surveillance photos, or other witnesses.

In drug crimes, the main witness is usually a police officer, or some other law enforcement personnel. A lot of cases arise out of traffic stops, or some other encounter. In most cases, the officer will testify about why someone was stopped, or questioned, and what they found. In other cases, a search or arrest warrant may have been obtained. The evidence is then discovered during the execution of the warrant.

Traffic Stops

When the arrest arises out of a traffic stop, or some other type of encounter, the first thing a lawyer will look at is the reason for the stop - why they decided to stop you. In most cases, the police have to have a reason for stopping someone. If you are driving your car, that may be the commission of a traffic offense. In that situation, they must have probable cause to make the stop. That doesn’t mean proof that you committed an offense. On the other hand, it has to be something more than a guess. Generally, they must be able to point to specific facts which suggest an offense has been committed or is being committed.

If your lawyer believes the stop was not valid, a motion to suppress can be filed. That is a motion which asks the court to keep out any evidence obtained as a result of the unlawful action – in this case, the stop. If the motion is granted, the evidence cannot be used. In most cases that means the charges will have to be dismissed.

Search or Arrest Warrants

If a search warrant, or arrest warrant, was involved you will have to get a copy of it. The rules are somewhat different for warrants. However, the person seeking the warrant must still establish probable cause. They do that by filing an affidavit which sets forth the facts they believe authorize the issuance of a warrant. That affidavit is then presented to a judge, who determines whether there is probable cause. If they agree then the warrant is executed.

When challenging a warrant, a lawyer looks for several things. One is whether the facts actually establish probable cause to believe an offense has been committed. Another thing to look at is what the warrant authorizes to police to do. If it is a search warrant that authorizes the search of a specific location, you must look to see if they exceeded that authority.

Your lawyer will also look at the facts set forth in the affidavit to determine if they are truthful. Many times that is difficult, since they often contain any information from what are called informants – people who provide them with information, but who aren't named. However, if you can prove that they intentionally lied about something, or left a significant fact out, that may be a basis for challenging the warrant.

Unfortunately, establishing a problem with the warrant does not always get you relief. The police are entitled to rely in good faith on the warrant. In other words, if the judge reviews it and approves it, they can rely on that and assume that it is valid. There are some limited situations where that may not be warranted, and your lawyer will have to look into that.

Is it really a controlled substance?

If the stop or the warrant was valid, the next possible defense is whether the substance is in fact what they claim it is. This is not as cut and dried as you would imagine. The substance will be submitted to a lab for testing. We have learned over the last few years that labs can make mistakes, and even falsely report results. That is why you simply cannot rely on the report that is issued. Instead, you must request the underlying records showing how that result was reached. Generally, that is not something the prosecutors have, and you will have to specially request it from the lab. If you do not do so, you have no way of knowing whether the report should be accepted.

Are you guilty?

The final defense, of course, is whether you are guilty or not. In drug cases, that often revolves around the question of possession. Possession has a specific meaning under the law, which basically means "care, custody, or control." Possession is not the same as ownership, which means more than one person can have possession of something. If drugs are found on you, possession is probably not an issue. However, if you are simply in the same place as the drugs are, that may be the critical issue. The fact that you are near drugs does not establish guilt. Instead, there has to be some link between the drugs and the individual. That is a fact-specific determination, that may have to be made by a jury. However, a lawyer experienced in handling drug cases will know what the state must prove, and whether they could meet that burden in your case.


As you can see, defending a drug case is not a simple as determining whether you had the drugs or not. That is why your lawyer must examine all the evidence, conduct a complete investigation before making any decisions on how to proceed in your case. Make sure you have a lawyer who is experienced and knows the issues, and what to look for

Walter Reaves
Connect with me
Criminal Defense Attorney Walter Reaves has been practicing law for over 35 years.