“PCS PG 1 <1G DFZ” If this means anything to you and you are reading my blog, odds are that you are either a defense lawyer or have been accused of a criminal offense. “PCS” is an acronym for “possession of a controlled substance.” “PG1” refers to the penalty group of the controlled substance alleged to have been possessed; here Penalty Group 1. “<1G”, as you might guess, is “less than 1 gram,” and references the quantity of the controlled substance in penalty group allegedly possessed. “DFZ” means “drug free zone.” So, PCS PG1 <1G means that the person is charged with possessing a controlled substance in penalty group 1, in an amount less than one gram, and doing so in a Drug Free Zone.
Drug charges, as I have suggested before, are often complicated. Here, I am going to explain first what substances Penalty Group 1 consists of; the way that various amounts of a substance are charged (i.e. less than a gram, 1 to less than 4 grams, etc.); and what the range of punishment is for such offenses. Then, I’ll briefly discuss how it can get even worse if the charge is manufacture or delivery of a controlled substance in Penalty Group 1, and/or, if the charge includes an affirmative finding of possession within a drug free zone.
Substances in Penalty Group 1
The most common substances in Penalty Group 1 are heroin, cocaine, methamphetamine, ketamine, some types of codeine, dihydrocodeine, methadone, nicocodeine, morphine, opium, and GHB.
Amounts and Punishment Range
Common sense suggests that possessing half a gram of methamphetamine shouldn’t be punished as severely as possessing 200 grams of methamphetamine. Luckily, the law sees it the same way. Possession of 400 grams or more of a substance in Penalty Group 1 is punishable by 10 to 99 years in prison, and a fine up to $100,000. Possession of 200 grams, but less than 400 grams is punishable by 5 to 99 years in prison, and a fine not to exceed $10,000. Being convicted of possessing 4 grams but less 200 grams will earn you 2 to 20 in prison, and a fine not to exceed $10,000. Possession of 1 gram but less than 4 grams is a third degree felony, carrying a range of punishment from 2 to 10 years in prison, and a fine not exceed $10,000.
Possessing less than 1 gram of a substance in Penalty Group 1 is a state jail felony, punishable by 180 days to 2 years in a state jail facility, and a fine not to exceed $10,000. However, if a person is convicted of possessing less than 1 gram of a controlled substance in penalty group 1, a judge MUST suspend imposition of the state jail sentence and place the defendant on probation IF the defendant has no prior felony convictions. CCP art. 42.12, Sect. 15(a). Meaning, probation is mandatory for PCS PG 1 <1G if the defendant has never been convicted of a felony previously.
The other side of that coin, however, is that probation CANNOT be given for a drug offense (including offenses such as PCS PG 1) if the offense includes an affirmative finding that possession occurred in a drug-free zone, and the defendant has been previously convicted under 1 of the increased punishment sections. Such an offense is a “3g” offense. CCP art. 42.12, Sect. 3(g).
So…
Less than 1 gram = State Jail Felony (180 days to 2 years; $10,000 fine; possible probation)
1 gram but less than 4 grams = 3rd Degree Felony (2-10 years; $10,000 fine)
4 grams but less than 200 grams = 2nd Degree Felony (2-20 years; $10,000 fine)
200 grams but less than 400 grams = 1st Degree Felony (5-99 years; $10,000 fine)
400 grams or More = Hybrid 1st Degree Felony (10-99 years; $100,000 fine)
Manufacture/Delivery Punishment Ranges
Manufacture or delivery of a controlled substance is a separate charge than mere possession of a controlled substance.
“Manufacture” means what you might expect it to mean: to make a simulated controlled substance and includes the preparation of the substance in dosage form by mixing, compounding, encapsulating, entableting, or any other process. H&SC 483.001(6). So, if you take some ketamine in liquid form, and cook it to make powder, you have “manufactured” ketamine, a penalty group 1 controlled substance. Likewise, if you place powdered ketamine into capsules, you have “manufactured” a penalty group 1 controlled substance.
“Delivery” has multiple meanings that include: actual delivery, transfer, or sale of a controlled substance (i.e. selling ketamine to someone); constructive delivery of controlled substance (i.e. leaving ketamine in the alley for a buyer to pick up); to give away a controlled substance; or to supply another with a controlled substance.
Manufacture/delivery of a controlled substance in penalty group 1 has the same punishment ranges as mere possession of a controlled substance in penalty group 1, until you hit the 200 grams but less than 400 grams range—then the punishment becomes 10 years to 99 years in prison, and a fine not to exceed $100,000. If you are charged with manufacture delivery of 400 grams or more, the minimum term of imprisonment is 15 years, with a maximum of 99 years, and a fine not to exceed $250,000.
So…
Less than 1 gram = State Jail Felony (180 days to 2 years; $10,000 fine; possible probation)
1 gram but less than 4 grams = 3rd Degree Felony (2-10 years; $10,000 fine)
4 grams but less than 200 grams = 2nd Degree Felony (2-20 years; $10,000 fine)
200 grams but less than 400 grams = Hybrid First Degree Felony (10-99 years; $100,000 fine)
400 grams or More = Hybrid 1st Degree Felony (15-99 years; $250,000 fine)
Drug Free Zone: uh-oh
An arrest for possession of a controlled substance in a drug-free zone makes an already serious charge even more serious. I tell clients that a drug free zone allegation is analogous to a “deadly weapon” allegation, in that it raises a serious offense to a deadly serious offense.
What is a “drug free zone,” though? “Drug-free zones” include schools (including colleges), playgrounds, daycares, arcades, youth centers (e.g. the YMCA or local community center), real property (land) owned by schools, school buses, public swimming pools, and facilities generally oriented towards minors (persons under 18 years of age) and/or families.
If a person is convicted of possessing a controlled substance or marijuana within 300 feet (swimming pools or video arcade) or 1,000 (most other drug-free zones) of a drug-free zone, the penalty for the offenses is enhanced—for example, a state jail felony becomes a third degree felony; a third degree felony becomes a second degree; etc. Additionally, for some offenses, the minimum term of imprisonment is increased by 5 years and the maximum fine for the offense is doubled (e.g. possession of a controlled substance within 1,000 feet of a school.) Even more, punishment that is increased for an offense involving a drug-free zone may not run concurrently with punishment for a conviction under any other criminal statute.
Conclusion
Drug charges are serious business. While the Texas Legislature is relatively more progressive in its recognition that drug abuse is a disease and necessitates treatment, all bets are off when manufacture or delivery is alleged, or a drug free zone is alleged. The principle difference for the disparity in treatment of ,”possession” versus “manufacture/delivery” or “possession in a drug free zone” is, as near as I can tell, related to the potential harm that occur to the general public. Possessing large amounts of drugs usually means a person also has a large amount of cash on hand. Lots of cash and lots of drugs on hand is to home invaders and robbers what honey is to bees. Guns are often involved. This is volatile mix, and it’s tough to argue that this mixture places the people around the environment in danger.