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Can a once confiscated unscheduled and unregulated drug, pop up later as a charge by the prosecutor once scheduled?

Spring, TX |

In December of 2012 I was charged with drug paraphernalia from having a marijuana seed, rolling papers, and the designer drug 25i in my car. At the time the contraband was seized it wasn't a controlled substance (and correct me if I'm wrong, it wasn't considered a dangerous drug either). I read a .gov webpage somewhere last month that it became a Texas Controlled Substance as of August 1st, 2013. Since at the time of the stop, seizure and citation it was unregulated would the prosecutor add another charge or would that be illegal?

Attorney Answers 5


  1. It depends on whether the law can be applied retroactively. Usually that is not the case, so its unlikely the prosecutor will file your case, they are to swamped to go back and deal with old cases. If you find the legislative, bill look to see it it is applied reto-active or prospective.

    Providing general answers are meant to help the poster to understand some complex legal concepts and in no way creates an attorney-client relationship.


  2. Senate Bill 264 amends the Texas Controlled Substance Act by making it a felony to possess, manufacture, or sell 25I-NBOMe (25I) and adding 25I to Penalty Group 2.

    SB 264 is out of House Committee, but has not been voted on by the House (or, obviously, signed into law by the governor). It is unlikely that the amendment, if passed, will apply retroactively. You can research the bill and track its progress on the Texas Legislature Online website.

    Keep in mind that although a particular designer drug, by itself, might not be a controlled substance (yet), it might be mixed with another substance that is controlled.

    You did not ask this question to invite a lecture, and I suspect you are well aware of the dangers of ingesting 25I-NBOMe.

    Paul Kendall 713-858-1519 Attorney Paul Kendall's answer to this question is for information purposes only. The answer is not legal advice and does not create an attorney-client relationship between Paul Kendall and the person who asked the question or anyone reading the answer. Paul Kendall offers initial consultations at no charge.


  3. The Constitutions of the United States and the State of Texas contain a provision against ex post facto laws. (U.S. Const. Art. 1 Sec. 9 and Texas Const. Art. 1 Sec. 16) which criminalize conduct which occurred before the enactment of the law. Furthermore, under the principles of due process, it is unconstitutional to declare and prosecute someone for an act that was not criminal when it occurred. (Due process of law is another protection of which notice of what is declared as criminal conduct is a part.) For instance, we have speed limit signs on our roadways, and that lets people know that exceeding that speed limit is illegal. So if you possessed something that was legal when you possessed it, and it was confiscated by law enforcement and then the possession of the substance becomes illegal, you have not committed an offense. However, this may be one of those times where you are forced to prove that your conduct was legal at the time as you work this out through the judicial system.

    Good Luck

    Answers provided on Avvo does not form an attorney-client relationship or indicate that the attorney represents or even will represent the client. Responses to questions are provided and based upon the facts as stated in the question. While attorneys attempt to make a complete and accurate response, there is no guaranty or warranty that the response is correct. You are encouraged to seek qualified counsel, licensed in the state(s) which have jurisdiction over the matters for advice. You are also encouraged to be careful as to your postings as the postings are not confidential.


  4. If I possess an apple today, and a law passes tomorrow that makes apple possession illegal, then they cannot go back and charge me because when I possessed the apple it was legal. There are very limited circumstances in which laws can be made retroactive without violating ex post facto protections...and this is not one of them.

    *** The fact that you solicited advice over a public forum waives any attorney-client privilege thus far. In addition, communications over this forum do not create any attorney-client relationship. To have a privileged conversation and/or establish an attorney-client relationship, contact me using the following information: Peyton Z. Peebles III Capitaine, Shellist, Peebles & McAlister, LLP, 713-715-4500 (office) 713-715-4500 (cell) Peebles@TexasLegalTeam.net www.TexasLegalTeam.net


  5. No, if the substance was not illegal at the time you were alleged to have possessed it, you cannot be prosecuted. However, beware that prosecutions under an analogue theory are becoming increasingly common. An analogue is a substance which is structurally, substantially similar to a particular controlled substance, and has similar or greater psychoactive effect than a particular controlled substance.

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