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  • Writer's pictureBrian Foley

Montgomery County Criminal Defense Attorney - That pill isn't what you think it is.

Updated: Feb 21, 2022

Montgomery County Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law

Have you ever been to a party or a rave and someone told you to take ecstasy? . . . Me neither. But if you don't look like a nerdy lawyer like me then maybe you have been offered a pill or two. Did you know that pill isn't what you think it is? So what do you think it is?

Ecstasy or MDMA is actually 3,4-Methyl​enedioxy​methamphetamine. Other names it goes by are Molly, or E. But a few years ago I noticed something in the results of defendants who's pills were tested for 3,4-Methyl​enedioxy​methamphetamine. They all kept coming back as regular methamphetamine. Like all of them. In fact it has been many years since I have seen a true case of MDMA being present in a pill that was collected from an individual who was under the impression the pill was ecstasy. Law enforcement agencies in Harris County including the Department of Public Safety and the Harris County Institute of Forensic Science have distributed memos detailing the over 90% positivity rate for methamphetamine instead of MDMA.

So what is the legal effect? Well, ignorance of a law violation is no excuse. Just because you thought it was MDMA and it came back as something else doesn't mean you didn't intentionally possess the illegal substance. This is because it is unlawful to possess MDMA and methamphetamine. If you made a mistake of fact, in that you believed the substance was Xanax for which you had a prescription, you may have a defense. In that case you would not have intentionally or knowingly possessed an illegal controlled substance.

If you did have MDMA of less than 1 gram then you would be charged with a State Jail Felony Possession of a Controlled Substance under Penalty Group 2.

If you actually had methamphetamine of under a gram then you would be charged with a State Jail Felony Possession of a Controlled Substance under Penalty Group 1.

Both of these carry the same range of punishment of 6 months - 2 years in a State Jail Facility and up to a $10,000 fine. Although in my years as a prosecutor and defense attorney I have never seen someone receive a $10,000 fine on a State Jail Possession case.

So before you take that pill (#1 you shouldn't take it at all if you're not proscribed by a doctor) you never know what is actually in it. If it is methamphetamine then the reaction can be very different and more addicting immediately. If it is laced with fentanyl you might end up dead. That would be a mistake of fact with no defense for sure!

Sec. 8.02.  MISTAKE OF FACT.  (a)  It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.
(b)  Although an actor's mistake of fact may constitute a defense to the offense charged, he may nevertheless be convicted of any lesser included offense of which he would be guilty if the fact were as he believed.


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