SUBJECT

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Possession of controlled substance cases – residue under .01 grams

NEW POLICY: Effective January 1, 2010, the treatment of cases involving possession of a controlled substance (Penalty Groups 1 and 2), whether a crack pipe with residue or any amount of trace evidence, will NOT be filed as a state jail felony when the weight of the retained controlled substance is less than .01 grams. The Harris County District Attorney’s Office commenced a review of policies and procedures at the beginning of 2009 to ensure that the office was complying with applicable statutory and case law in observance of our mandate to see that justice is done. One of the issues raised was whether as a matter of policy there should be a minimum measurable amount of controlled substance as a requisite to filing charges. A determination was made, after consultation with scientific academies and forensic laboratories, that the minimum threshold amount of the Penalty Group 1 and 2 should be . 01 (one/one hundredth) gram ( please see attached photo exhibits). The defendant has a right to inspect evidence that is necessarily indispensable to the State’s case. Because an amount lower than .01 grams does not allow for retesting of the material, the better practice, and what is becoming the standard in Texas, is to require an amount of at least .01 grams to file the felony possession charge. Travis and Bexar Counties hold fast to a quantity threshold of .01 grams while Tarrant County uses .02 grams as a threshold that allows for two forensic tests of the controlled substances. This change is also consistent with the National Research Council’s proposal for DNA evidence and testing, which recommends that samples be divided and half retained for independent testing. 8 Crim. L.F. 445 (1997). The ultimate safeguard against error due to sample mix-ups is to provide an opportunity for retesting. OPTIONS: 1) If the weight of the controlled substance cannot be determined, and paraphernalia is present, the case should be filed as a Class C paraphernalia charge. If the criminal episode also involved another offense, a Class A or B misdemeanor or felony, the case may be presented to a screening prosecutor at intake. 2) If the trace quantity is in a receptacle other than drug paraphernalia, such as a baggie, mirror, etc., the officer should release the suspect after appropriate identification and then submit the substance for analysis. If on completion of the lab analysis, the quantity is equal to or greater than .01 grams of a controlled substance, the officer may present the case to a screening prosecutor at intake. If that prosecutor accepts charges, the officer may then obtain a to-be warrant, or the case can be directly presented to a grand jury.

3) If the suspect is on parole and the amount of the controlled substance is less than . 01 grams, the officer should contact the defendant’s parole officer to notify them of a Class C violation if paraphernalia is present. This way the parole board can take any actions they deem necessary. Similarly, if the suspect is on bond or probation and the amount of the controlled substance is less than .01 grams, with paraphernalia present, the officer should contact the Chief Prosecutor of the court where the suspect’s case is pending or where he/she is being supervised. Again, this affords the Court the opportunity to take any action it deems necessary. EXAMPLES: Residue or trace amount commonly encountered by officers: • Crack pipes with residue, or smashed pipes with residue • Brillo pads, syringes, straws, or razor blades with residue • Flecks of white powder on suspect’s face, vehicle console or carpet • Swabs of the suspect’s nose, mouth or cheek • Slight white film of white powder on or in any object, including a baggie, mirror, folded piece of paper, on a knife blade, etc. What is NOT considered residue or trace amounts encountered by officers: • Visible powder in a baggie, on a mirror, in folded piece of paper or other similar item where the powder is more than slight powder film and weighs at least .01 grams • Any part of what is recognized as part of a crack rock and weighs at least .01 grams. ADDITIONAL PROCEDURES: When filing a to-be warrant, all officers will bring a current copy of the offense report and any other pertinent information, including photo spreads, witness statements, lab reports, video/audio tapes, etc. before their charges will be filed and processed.