Is it a Crime to Have a Positive Drug Test?

October 21, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

It’s not a crime in Texas to fail a drug test or urine analysis (“UA”).  Possession of any illegal drug such as marijuana, cocaine, or any other controlled substance without a prescription is defined as “actual care, custody, control or management.”  Tex.Pen.C. 1.07(39).  Failing a UA does not demonstrate this as backward as it may sound.

Texas courts apply what is known as the Corpus Delecti rule.  Corpus Delecti is latin for “body of the crime.”  The prosecution in every case must prove a crime was committed.  An out of court confession, in and of itself, is never enough to sustain a conviction.

A classic and more clear example of corpus delicti is someone who confesses to arson – yet the building the person claims to have burned to the ground is completely unharmed.  Legally, this is indistinguishable from a person failing a drug test to prove a person had “actual care, custody, control or management” of a drug they shouldn’t have had.

You Can Still Be in Trouble for Failing Drug Tests

If you are on bond for a crime – a failed UA is legally sufficient to hold your bond insufficient and have you re-arrested.  It can also be grounds for a motion to revoke probation or a motion to adjudicate.  This is because the formal requirements of the corpus delicti rule are loosened for these proceedings and because typically terms of bond and/or probation are more broad as well to prohibit failing drug tests.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.

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What is a Motion to Suppress?

April 15, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

A criminal defendant can challenge the legality of a detention, a search, seizure or other police tactic which resulted in law enforcement attaining evidence.  If the action is held to be illegal, the evidence is excluded (or suppressed) at trial.

Depending on the facts of any specific case, the suppression of evidence may mean the State’s evidence at trial will be insufficient to sustain a conviction — or it may only eliminate the jury considering damaging evidence during the trial.

Texas Code of Criminal Procedure 38.23 says in relevant part, “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”

This provision stems from the Fourth Amendment to the U.S. Constitution and it’s prohibition against unreasonable search and seizures.  Search and seizure law and determining what is or is not a valid or legal arrest, search and/or seizure is a highly complex and highly complicated area of the law.

In Texas, there is actually a legal presumption that if a search is warrant-less, that the search is invalid.  The prosecution can over-come this burden with clear and convincing evidence that the search was valid during a hearing before the Judge.

Motions to suppress are common ways of defending criminal cases.  Again, if evidence is attained illegally and it is excluded, the prosecution may lose it’s only evidence as to certain elements of the case.  Where this is the case, they lose as a matter of law.  This isn’t always the case, though, where the prosecution has other ways of proving a crime independent of the illegally attained evidence.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For specific legal advice about your own situation you should contact an attorney.

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Posted by Jeremy Rosenthal, Esq.