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Not so Obvious Consequences of Pleading Guilty to a Drug Offense

CONVICTIONS:

Any plea that results in a conviction can serve as grounds for enhanced sentences, or labeling you a habitual offender. A conviction for felony probation can even prevent you from receiving probation on a subsequent conviction.

A state conviction can sometimes subject you to federal sentencing exposure and there is the possibility that the sentences will be stacked, both as to state time and federal time. This issue is most prevalent where a person pleads guilty in state court and is later charged with a federal offense. In that instance, the existence of the prior state conviction may subject you to a new federal offense for which you may otherwise have been ineligible, or may escalate the sentence faced in federal court for subsequent charges under the federal sentencing guidelines.

A plea can also affect the likelihood of receiving parole on future offenses. Also, a plea could adversely affect you if you are already on probation.

ASSET FORFEITURE

If you have been charged with a narcotics violation, asset forfeiture is a possibility in both State and Federal Courts. In these difficult economic times the prosecution has been known to try and forfeit cash, cars, homes and businesses.

For example:

In U. S. v. Bentan court, 03-41590, August 17, 2005 (5th Circuit) the defendant's interest in a five million dollar lottery win was forfeited because Defendant could not show he made money any other way than by dealing drugs.

Driver's License Suspensions

A person's license is automatically suspended upon final conviction of a drug offense.

The first suspension period for an adult is 180 days. In addition, a drug education program is automatically required and must be completed within the 180-day suspension period or the license remains suspended until such time as a certificate of completion is received by the Texas Department of Public Safety.

If you are under the age of 21, the period of suspension ranges from 180 days to one year, depending on the type of offense, and the convicting court determines whether the drug education program will be required.

NOTE: A person who does not hold a Texas Driver License at the time of conviction will be prohibited from obtaining a Texas Driver License for a period of 180 days. The prohibition period will not begin until the person makes contact with DPS for the issuance of a driver license or for reinstatement of driving privileges for non-residents.

CONCEALED HANDGUN

Texas law allows a convicted felon to possess a gun at his/her residence after five years has passed since the release from confinement or community supervision, parole or mandatory supervision, whichever date is later. Tex.Penal Code 46.04 However, Texas rules do not affect federal laws. See U.S. v. Daugherty, 264 F3d 513

A conviction or a deferred may affect a person's ability to obtain a concealed handgun license. see Tex. Gov Code 411.172 et seq.

IMMIGRATION CONSEQUENCES *

(* YOU MUST CONSULT WITH AN IMMIGRATION ATTORNEY)

There are 4 categories of offenses: 1) aggravated felonies; 2) crimes of moral turpitude; 3) drug and firearms offenses; and 4) family violence crimes:

The aggravated felony definition is contained in the immigration statute at INA section 101(a) (43); 8 USC section 1101(a) (43). This statute includes 21 provisions that encompass hundreds of offenses. Some of the crimes like murder, rape, sexual abuse of a minor and drug trafficking, are aggravated felonies regardless of the sentence imposed. Others, such as theft, burglary and crimes of violence depend on a term of imprisonment of at least one year or more without regard to whether the sentence was suspended. There is no relief available to a person convicted of an aggravated felony.

Any offense involving trafficking and/or dealing in controlled substances or weapons, regardless of the sentence imposed is an aggravated felony. A felony offense for possession of even a small quantity of drugs is also an aggravated felony. If the crime is not an aggravated felon, but is a conviction for violation of any law relating to controlled substances (except a single offense of possession of 30 grams or less of marijuana), it is a removable offense. Non-citizens who admit the elements of a drug offense or who are considered drug traffickers may be inadmissible.

Education

The Violent Crime Control and Law Enforcement Act of 1994 states that no basic grant shall be awarded under this subpart to any individual who is incarcerated in any Federal or State penal institution. (No Pell grants, the federal college aid program that had engendered numerous college programs in prison.)

The Drug Free Student Loans Act of 1998 denies either temporarily or permanently students ineligible for federal loans and grants who have been convicted of narcotics offenses. This is the Sounder Amendment to the 1998 Higher Education Reauthorization Act 20 USC 1091(r) 2002, which states:

1) In general. A student who has been convicted of any offense under any Federal or State law involving the possession or sale of a controlled substance shall not be eligible to receive any grant, loan or work assistance ... during the period beginning on the date of such conviction and ending after the interval specified in the following table:

•a) Convicted of an offense involving - The possession of a controlled substance: Ineligibility period is First Offense - 1 year; Second Offense - 2 years, Third Offense - Indefinite. The sale of a controlled substance: Ineligibility period is First Offense - 2 years; Second Offense - Indefinite.

In Texas a person who is convicted of or adjudicated as having engaged in delinquent conduct constitutes a felony or Class A misdemeanor, or an offense under Chapter 481, of the Health and Safety Code (Texas Controlled Substances Act) forfeits a prepaid higher education scholarship.

You cannot receive a TEXAS grant (Toward Excellence, Access, & Success Grant for public and private institutions of higher education) or TEXAS grant II (which applies to two year public institutions of higher education) if you have been convicted of a felony or an offense under Chapter 481, Health and Safety Code, unless you meet the other applicable eligibility requirements under this subchapter and 1) have received a certificate of discharge by the Texas Department of Criminal Justice or a correctional facility or completed a period of probation ordered by a court and at least two years have elapsed from the date of the receipt or completion; or 2) have been pardoned, had the record of the offense expunged from the person's record, or otherwise has been released from the resulting ineligibility to receive a grant under this subchapter. Education Code Sec. 56.304 and 56.354

Your TEXAS grant or a TEXAS II grant will be revoked if you were already receiving one when convicted.

Also .... Many school districts have adopted "zero tolerance" policies which cover not only offenses that occur on campus or at sponsored activities, but also any type of criminal offense. This means that some school districts treat any criminal conviction or deferred as potential grounds for disciplinary action. The only way to know is to contact the School District for a copy of its procedures.

WATCH OUT FOR THIS >>>

A bigger problem that has recently occurred is a mandatory criminal background checks that must be done on anyone who wishes to go on campus to help teachers, chaperone kids or assist at school functions. This applies to all people, including parents of students. Many schools are withholding approval of these people if anything shows up, arrests or deferred probation. Check with the School District to obtain its policy on this.

Civil Rights

A convicted felon may not vote in a public election. The conviction is final whether the sentence is imposed or suspended, as long as it is not on appeal.

You may not serve on a Grand Jury if convicted of theft or any felony or currently charged with a misdemeanor theft or a felony. (deferred counts here too.)

A defendant finally convicted of a felony may not run for or be appointed to, public elective office in Texas. Probation counts may count as a conviction and you are barred for life unless pardoned.

Crimes of Moral Turpitude

Crimes of Moral Turpitude convictions can affect your ability to be licensed, obtain security clearances and be employed. Moral turpitude is (1) the quality of a crime involving grave infringement of the moral sentiment of the community as distinguished from statutory mala prohibita; (2) conduct that is base, vile, or depraved; and (3) something that is inherently immoral or dishonest.

For example:

Crime of Moral Turpitude:

Delivery of a Simulated controlled substance is a crime of moral turpitude.

Not a Crime of Moral Turpitude:

Misdemeanor marijuana possession is not crime of moral turpitude.

For information on Occupational Driver's License (ODL). Go to my Occupational Driver's License page to learn more.

If you are not a citizen of the United States, please be sure to let Mrs. Tucker's office know!

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Kimberly Griffin Tucker, P.C.

Carrollton:
3740 N. Josey Lane
Suite 213
Carrollton, TX 75007
Office: (972) 492-2889
Fax: (972) 421-1742

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The Law Office of Kimberly Griffin Tucker serves clients throughout Texas, including Plano, Denton, Lewisville, Frisco, Flower Mound, Corinth, Lake Dallas, Trophy Club, Keller, Aubrey, Pilot Point, Ponder, Krum, Little Elm, The Colony, Westlake, Highland Village, Farmers Branch, Irving, Dallas, Denton County, Dallas County, Dallas, and Collin County.

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