Drug Charges

The State of Florida is notoriously tough on drug charges, and reserves harsh penalties for those convicted of drug crimes. Drug charges can range from simple possession, to possession with intent to sell, manufacture, or deliver, to drug trafficking. Because of the severity with which the State of Florida prosecutes drug charges, it is essential that you have a competent defense if you are charged with a drug crime. Hiring a skilled defense attorney can mean the difference between potentially serving life in prison, and having your case dismissed or your penalties substantially reduced.

POSSESSION

In Florida, it is against the law to “be in actual or constructive possession of a controlled substance unless” it is prescribed. F.S. 893.13(6)(a). The State has three elements to prove if it prosecutes a charge of drug possession:

1. There is a substance in your control or possession;
2. You had knowledge of the control or possession of that substance; and
3. The substance is a controlled substance

“Actual or Constructive Possession”

Control can be actual or constructive; the line between these concepts can be blurry and may be subject to change depending on case law, but following is a general description of the two types of possession. Actual control is easier to prove. A person has actual control of a substance if it is on his or person (e.g. in a pocket) or within easy reach and clearly under the person’s control.

Constructive possession is more abstract and harder to prove, so called because the prosecutor has to “construct” one’s possession from factual inferences. The prosecutor must show that a person had knowledge of a substance being in a certain location, and that location must be under the person’s dominion and control. Two people can have possession of the same substance at once.

Constructive possession is a highly defensible charge owing to its tentative nature. For example, if drugs are found in the kitchen cabinets of a person’s home, the homeowner does have dominion and control of the drugs, but that does not necessarily mean the homeowner knew the drugs were there.

Simple Possession

Simple possession of controlled substances is charged if law enforcement believes the substances were only for personal use. Cannabis (marijuana, or “weed”) is treated less severely than most other drugs. Being convicted of possession of 20 grams or less of cannabis is a misdemeanor of the first degree, with a maximum penalty of 1 year in prison and a $1,000 fine. However, possession of most other drugs are felonies (as is possession of more than 20 grams of cannabis), with harsher penalties attached.

Possession of Drug Paraphernalia

Possession of drug paraphernalia is a first degree misdemeanor, with a maximum penalty of 1 year in prison and a $1,000 fine. Paraphernalia includes pipes, bowls, papers, containers, syringes, and other objects intended for use with controlled substances. A charge of possession of drug paraphernalia can be contested by a skilled lawyer for a number of reasons. For example, a water pipe (or “bong”) can be used for tobacco instead of controlled substances.

POSSESSION WITH INTENT TO SELL, MANUFACTURE, OR DELIVER

A charge of possession with intent to sell goes beyond having knowledgeable control of an illicit substance, but asserts that the person in possession also planned to sell this substance. This charge will usually be either a third degree felony with up to 5 years in prison, or a second degree felony with a maximum of 15 years in prison. A prosecutor may tack on the intent to sell to a charge of possession based on several factors, including:

• A quantity of drugs too great for personal use
• A large amount of cash being found with the drugs
• Packaging indicative of an intent to sell, such as the drug being distributed in small plastic bags

If a substance is found in especially large quantities, a charge of possession with intent to sell, manufacture, or deliver may turn into a charge of trafficking.

TRAFFICKING

A charge of trafficking may be applied for egregious cases of possession (e.g. 25 pounds of cannabis or more). The State of Florida may also prosecute a charge of trafficking if controlled substances are brought into the state. Florida Statutes impose heavy mandatory minimum sentences for trafficking charges, covered below.

PENALTIES

Possession of 20 grams or less of cannabis and possession of drug paraphernalia are first degree misdemeanors, with a maximum penalty of 1 year in prison, 1 year probation, and a $1,000 fine.

Simple possession of illegal substances (over 20 grams if it is cannabis), or possession with intent to sell, manufacture, or deliver, generally falls under a third degree felony or a second degree felony.

Third degree felonies impose a maximum penalty of five years in prison, five years probation, and a fine of $5,000. Second degree felonies have a maximum penalty of 15 years in prison, 15 years probation, and a $10,000 fine. In addition to these penalties, a drug conviction will often result in suspension of your driver’s license.

The penalty scheme for trafficking convictions is complex, but here is an overview of the minimum penalties for drug trafficking in the State of Florida:

Aggravating Factors

Several aggravating factors can lead to an increased sentence for a drug conviction. These include:

• The presence of a gun
• The possession of controlled substances within 1,000 feet of a school
• Prior drug convictions

DEFENSE AGAINST DRUG CHARGES

A skilled lawyer can invoke a plethora of defenses to help your drug case. Here are just a few examples of the grounds on which a lawyer can have evidence thrown out or help your case.

Lack of Reasonable Suspicion or Probable Cause

The Fourth Amendment to the U.S. Constitution prevents law enforcement from performing unreasonable searches and seizures. In order for law enforcement to stop you, they must have reasonable suspicion that you were committing a crime (or probable cause that you committed a traffic infraction such as speeding, if you are driving). Law enforcement must then have probable cause in order to conduct a warrantless search or make an arrest, or they must have your consent. If law enforcement does not meet these requirements when they conduct a search or make an arrest, then they have violated your Fourth Amendment rights and the evidence they find must be thrown out of court.

Lack of Consent

Without a warrant or probable cause, law enforcement cannot perform searches and seizures unless they have your consent. However, this consent cannot be coerced. So if law enforcement acts in an intimidating manner that would make a reasonable person think they are not allowed to say no to a search, then consent was not truly given and the evidence found in that search and seizure must be thrown out.

Lack of Possession

In a charge of possession, the prosecutor must show that you had dominion and control over a controlled substance and knew of its existence. If law enforcement pulls you over and finds illegal substances in your car, this may not satisfy those requirements. Were you aware the substance was in the vehicle? Are you the sole owner of the car?