Sale or Delivery of Fentanyl in Florida – An Attorney’s Guide
The opioid crisis has led to a heightened focus on the sale and distribution of fentanyl, a synthetic opioid that is 50 to 100 times more potent than morphine. In Florida, the sale or delivery of fentanyl is a serious criminal offense that carries severe penalties. This guide aims to provide attorneys with a comprehensive understanding of the elements, defenses, and penalties associated with the charge of Sale or Delivery of Fentanyl under Section 893.13 of the Florida Statutes.
Elements of the Offense
To be convicted of the sale or delivery of fentanyl in Florida, the prosecution must prove the following elements beyond a reasonable doubt:
Possession of Fentanyl
Possession of fentanyl is a critical element that the State must prove. Possession can be categorized into two types:
In cases of actual possession, the defendant has direct physical control over the fentanyl. This could mean that the substance is found in the defendant’s hand, pocket, or within immediate reach. Actual possession is often easier for the prosecution to prove because the fentanyl is found directly on the person.
Constructive possession is more nuanced. It means that the fentanyl was in a place over which the defendant had control, or had the ability to control, even if they did not have physical possession of it. For example, if fentanyl is found in a locked safe to which only the defendant has the key, that could be considered constructive possession. However, if the fentanyl is found in a common area accessible to multiple people, proving constructive possession becomes more complicated. It’s important to note that mere proximity to the drug is not sufficient to establish either form of possession. The prosecution must also prove that the defendant was aware of the fentanyl’s presence and had the ability to exercise control over it.
The prosecution must prove that the defendant had the specific intent to sell, manufacture, or deliver fentanyl. Intent is a mental state that can be challenging to prove directly, but it can often be inferred from circumstantial evidence. Here are some key factors that can indicate intent:
Quantity of Fentanyl
A large amount of fentanyl, more than what would be considered for personal use, can be a strong indicator of intent to sell or distribute.
Presence of Paraphernalia
The presence of items commonly used in drug distribution, such as scales, baggies, or measuring devices, can also suggest intent.
Evidence of financial transactions, especially large or frequent ones, can indicate a commercial operation. This can include physical cash, bank records, or digital transactions like cryptocurrency transfers.
Text messages, emails, or recorded conversations discussing the sale or distribution of fentanyl can be compelling evidence of intent.
While not definitive, a history of drug-related offenses can sometimes be used to establish a pattern of intent, although this can vary by jurisdiction and specific case circumstances.
Observations and Testimonies
Witness accounts or surveillance footage showing the defendant engaging in activities commonly associated with drug dealing can also be used to establish intent.
The location where the defendant is found can also be a factor. Being caught in an area known for drug activity may contribute to the evidence of intent.
The defendant actually sold, manufactured, or delivered the fentanyl, or was in the process of doing so. This element is usually proven through direct evidence like surveillance footage, witness testimony, or the actual exchange of the substance for money.
- Actual Possession: Physical control of the substance, such as carrying it in a pocket.
- Constructive Possession: The substance was in a place where the defendant had control over it, or the ability to control it, even if they did not have physical possession.
- Intent: A conscious objective to engage in specific conduct.
Penalties for Sale or Delivery of Fentanyl in Florida
In Florida, Sale or Delivery of Fentanyl is considered a second-degree felony, leading to severe penalties. These include up to 15 years of prison or probation and a $10,000 fine.
|Sale or Delivery of Fentanyl
||Level 5 (or 28 points)
||15 years of prison or probation, and a $10,000 fine
The charge carries a severity level of 5 (or 28 points) under the Criminal Punishment Code. Assuming there are no aggravating circumstances (such as prior criminal convictions), there is no minimum mandatory sentence. This means that even though the judge can sentence you up to the maximum allowed sentence, the judge is not required to order any amount of prison time.
Moreover, under Sec. 322.055, Florida Statutes, the court is required to suspend your driver’s license for 6 months if you are convicted of Sale or Delivery of Fentanyl. However, the court may allow you to obtain a restricted business-purposes-only license if warranted by a “compelling circumstance.”
How to Fight a Charge of Sale or Delivery of Fentanyl in Florida
Facing a charge of sale or delivery of fentanyl in Florida is a serious matter that can have life-altering consequences. It’s crucial to understand your legal rights and the defenses available to you. At Leppard Law, we specialize in defending clients against such charges. Below, we outline some key strategies and defenses that can be employed to fight a charge of sale or delivery of fentanyl.
Proving Intent to Sell
The State must go beyond showing mere possession of fentanyl to prove a charge of possession with intent to sell. They must demonstrate that the possession was for more than just personal use. Factors that could indicate intent to sell include:
- Large quantities of the substance
- Presence of paraphernalia such as scales or baggies
- Text messages or communications related to selling
- Observations of transactions or exchanges
Actual or Constructive Possession
One of the key elements the State must prove is that you had either actual or constructive possession of fentanyl. Understanding the nuances of these types of possession can be crucial for your defense.
In cases of actual possession, the fentanyl must be found on your person. This could mean it was in your pocket, in a bag you were carrying, or even in your hand at the time of arrest. Actual possession is often easier for the prosecution to prove because the evidence is direct and tangible. However, defenses can still be mounted, such as challenging the legality of the search that led to the discovery of the fentanyl.
Constructive possession is more complex. It implies that you had control over the fentanyl or the area where it was found, even if it wasn’t physically on you. For example, if fentanyl is found in your home, car, or a storage unit registered in your name, you could be charged with constructive possession. However, the prosecution must also prove that you were aware of the fentanyl’s presence and had the ability to exercise control over it.
In some cases, fentanyl may be found in a location where multiple people have access, like a shared vehicle or a common living area. This is often referred to as “joint possession” and can complicate the prosecution’s case. If it’s unclear who had control over the fentanyl, it may be more difficult for the State to prove constructive possession against any single individual.
Challenging Possession Claims
Both types of possession can be challenged in various ways:
- Illegal Search and Seizure: If the fentanyl was discovered during an illegal search, any evidence obtained may be inadmissible in court.
- Lack of Knowledge: If you can prove that you were unaware of the fentanyl’s presence, this could negate the element of possession.
- Temporary Possession: If you can demonstrate that your possession was temporary and solely for the purpose of disposal, you may have a valid defense.
Understanding the intricacies of actual and constructive possession can significantly impact the outcome of your case. At Leppard Law, our experienced attorneys can help you navigate these complexities to mount the most effective defense possible.
The concept of legal disposal can be a unique and sometimes misunderstood defense in cases involving the sale or delivery of fentanyl. Essentially, this defense argues that your possession of the substance was temporary and solely for the purpose of lawful disposal. Here are some key aspects to consider:
Definition of Legal Disposal
Legal disposal refers to the act of possessing a controlled substance like fentanyl with the exclusive intention of safely and lawfully disposing of it. This could mean turning it over to law enforcement, a medical facility, or using a designated drug disposal service.
The time frame between acquiring the substance and the intended disposal can be crucial. The shorter the time, the stronger your defense may be. Extended possession without attempts to dispose of the substance could weaken this defense.
Documentation and Witnesses
If possible, having documentation or witnesses to corroborate your intent to dispose of the fentanyl can strengthen your case. This could be in the form of text messages discussing disposal plans, or a witness who can testify that you were on your way to a disposal facility.
State Laws and Regulations
It’s important to be aware of state laws and regulations regarding drug disposal. Some states may have specific procedures for how controlled substances should be disposed of, and failure to follow these could undermine your defense.
Burden of Proof
Remember, the burden of proof lies with the prosecution to show that your possession was not for legal disposal. However, providing evidence to support your claim can significantly aid your defense.
Given the complexities involved, it’s advisable to consult with an experienced attorney if you intend to use this defense. At Leppard Law, our attorneys are well-versed in the intricacies of legal disposal as a defense and can guide you through the legal process.
Other Potential Defenses
Unlawful Search and Seizure
We can move to dismiss evidence obtained in violation of your constitutional rights. For example, if the police did not have a valid search warrant or if they conducted an illegal stop and frisk, the evidence may be thrown out.
Lack of Supporting Evidence
Another strategy is to show that there is insufficient evidence to support the charge. This could involve demonstrating that the substance in question was not fentanyl, or that the amount was so small that it could only be for personal use.
If you have an alibi that can be verified, this could serve as a strong defense. An alibi could prove that you were not at the location where the alleged sale or delivery took place, thereby casting doubt on the charges against you.
Frequently Asked Questions
Are there any specific actions that could inadvertently prove “intent” in court?
While it’s ultimately up to the court to decide, certain behaviors can be interpreted as indicative of intent. For example, frequent visits to known drug areas, coded language in text messages, or possession of large amounts of cash could potentially be used as evidence of intent to sell or deliver fentanyl.
Can the type of packaging of Fentanyl affect my case?
Yes, the way fentanyl is packaged can be used as evidence in court. For instance, if the substance is divided into smaller, individually wrapped portions, it may be considered evidence of intent to distribute rather than for personal use.
What role do expert witnesses play in these cases?
Expert witnesses, such as forensic toxicologists or pharmacologists, can provide critical insights into the properties of fentanyl, its effects, and its typical usage patterns. Their testimony can either support or challenge the prosecution’s case, particularly concerning intent and action.
Can I be charged if I’m caught in a vehicle containing Fentanyl?
Yes, you can be charged if you are in a vehicle where fentanyl is found, especially if you are the driver or the owner of the vehicle. However, the prosecution must still prove all elements of the offense, including possession, intent, and action.
What are the chances of reducing the charge to simple possession?
It’s difficult to generalize as each case is unique, but a skilled defense attorney may be able to argue for a reduction of charges based on the specifics of your case. Factors like a lack of prior convictions, small quantities of fentanyl, and absence of evidence supporting intent to distribute can sometimes lead to reduced charges.
How does the “chain of custody” affect my case?
An unbroken chain of custody for the seized fentanyl is crucial for the prosecution. Any gaps or inconsistencies in the chain can provide opportunities for a defense attorney to challenge the validity of the evidence, potentially leading to its exclusion from the case.
Ready to Fight Your Fentanyl Charge? Choose the Best, Choose Leppard Law.
Facing a charge of sale or delivery of fentanyl can be a life-altering experience. It’s crucial to have an attorney who not only understands the law but also understands you. At Leppard Law, we treat our clients like family, always putting their best interests first.
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