Getting charged with drug possession in Florida could be a serious problem for you and others affected by it like your family and your employer. As compared to other states, Florida’s penalties for drug offenses are stiff. Notably, if convicted, you could be thrown in jail or prison for decades. With a conviction on your record, you might have a harder time trying to get a job, take out a loan, or rent an apartment, among other things. Because of this, it’s essential that you not only become keenly aware of Florida’s drug possession laws, but that you also make the most of your rights should you ever be charged with an offense. Let’s take a closer look at the drug possession laws in Florida and what you can do if you are in trouble.
Key Elements Of Drug Possession In Florida
Florida law considers you to have possession of an illegal drug when you are exercising ownership or control over it. You could be in actual possession a drug or in constructive possession of it. Actual possession is where you have physical control over the drug and you know that you are possessing it. Constructive possession, on the other hand, is where you know about the drug and have the ability to exercise control over it.
According to Florida law, the penalties or consequences of drug possession depend mainly on the type of drug and the amount of it that you possess. Typically, the smaller the quantity of a drug that you possess, the less severe the consequences. Critically, the prosecutor – the person who attempts to convince a judge or jury that you are guilty of the crime – must show that you have knowledge that you are possessing an illegal controlled substance.
Consequences Of Drug Possession In Florida
- Marijuana (Up to 20 Grams): first degree misdemeanor which carries a maximum 1-year jail sentence and $1,000 fine
- Marijuana (More Than 20 Grams): third degree felony which carries a maximum 5-year prison sentence and $5,000 fine
- Heroin or Fentanyl (Up To 4 Grams): third degree felony which carries a maximum 5-year prison sentence and $5,000 fine
- Cocaine (Up To 28 Grams): third degree felony which carries a maximum 5-year prison sentence and $5,000 fine
- Ecstasy (Up To 10 Grams): third degree felony which carries a maximum 5-year prison sentence and $5,000 fine
- Methamphetamine (Up To 14 Grams): third degree felony which carries a maximum 5-year prison sentence and $5,000 fine
- Unlawful Chemicals (chemicals used to make controlled substances such as Meth, Ecstasy, GHB): second degree felony which carries a maximum 15-year prison sentence and $10,000 fine
- Drug Paraphernalia (pipes, bongs, spoons, needles, scales): first degree misdemeanor which carries a maximum 1-year jail sentence and $1,000 fine
Pretrial Diversion Programs For First Time Offenders
It is important to remember that if you have been charged with a misdemeanor or felony of the third degree and you have not been convicted of more than one misdemeanor, Florida could offer you a pretrial diversion program or drug court which could allow you to avoid a hefty jail sentence. These programs provide counseling, education, supervision and medical and psychological treatment. In fact, completion of this program allows your charges to be dropped. A criminal defense attorney can advise you as to whether a diversion program is applicable and suitable for your situation.
Possible Defenses Which Can Get You Off The Hook For Drug Possession
It Isn’t You Who Possesses The Drug, Or You Don’t Knowingly Possess The Drug
You could dispute possessing the drug. Critically, there might be no direct evidence that you possessed it. What if the drug belonged to someone else? It could have been found in a place that you did not have access to or that you had shared access to. This issue could cause doubt to enter the minds of the jury.
Notably, the prosecutor has the burden of proving that you knew that you possessed the drug. Maybe you didn’t know. For example, suppose that you do not know about a drug which someone leaves in your car the night before. If law enforcement finds this drug and arrests you for possession, you could argue that you did not knowingly possess it. If there is a question as to your knowledge of possessing an illegal drug, then you could be found not guilty.
Your Constitutional Rights Are Violated
Your constitutional rights protect you from illegal searches and seizures. For instance, an officer typically has to have probable cause to conclude that you are violating the law in order to pull you over. If the officer pulls you over and wants to search your car without your consent, the officer must have probable cause that you are possessing an illegal drug. Otherwise, the search could be construed as unconstitutional. If this happens, then your case could be tossed.
Also, law enforcement typically has to be in possession of a valid search warrant to enter your home without your consent. Without this warrant, law enforcement’s search of your home could be challenged. Keep in mind that a prosecutor might be capable of proving beyond a reasonable doubt that you possessed an illegal drug; however, an illegal search and seizure generally makes any evidence of this inadmissible. If this happens, the prosecutor might no longer have what they need to land a conviction.
You Are Entrapped
Entrapment is where law enforcement causes you to commit a crime. For example, an undercover police officer pressures or persuades you into possessing an illegal drug. Keep in mind that if an undercover agent tells you that possessing a drug is not illegal, and you purchase the illegal drug from that undercover agent as a result, then according to Florida law, you have been entrapped.
You Are Seeking Medical Assistance Relating To An Overdose
Under Florida law, you could be immune from prosecution for seeking assistance relating to an alcohol-related or drug-related overdose. Specifically, if you seek medical assistance for someone who is suffering from an overdose or who is believed to be suffering from an overdose, then you may not be arrested, charged, prosecuted or penalized for possession of a controlled substance or drug paraphernalia as long as the evidence for the offense is acquired as a result of your request for medical assistance.
Relatedly, if you are personally experiencing an overdose or believe that you are experiencing an overdose, and you need medical assistance, then you may not be arrested, charged, prosecuted or penalized for possession of a controlled substance or drug paraphernalia as long as the evidence for the offense is obtained in connection with your request for medical assistance. Keep in mind that you do not need to actually experience an overdose for this immunity from prosecution to apply.
Moreover, if you believe that you are suffering from an overdose and have obtained medical assistance, or you are seeking medical assistance for someone else relating to an overdose, then you may not be penalized for a violation of a condition of pretrial release, probation or parole as long as the evidence for the violation was obtained because of your request for medical assistance.
However, immunity from arrest, charge, prosecution, and penalization in Florida does not apply if you possess more than 10 grams of any Schedule 1 substance and certain Schedule 2 substances, or any combination or mixture of them. Also, keep in mind that while you might be protected from arrest, charge, prosecution or penalty for seeking assistance relating to an overdose, this does not mean that the evidence will be suppressed as it relates to other criminal prosecutions.
You Have A Prescription For Yourself Or For Someone Else
Possession of a controlled substance is not illegal if you lawfully obtain it from your pharmacist or doctor. Notably, this not only covers situations where the prescription is for you as the patient, but it also includes situations where you lawfully obtain the controlled substance to deliver to someone else such as your spouse, children or parents. Generally, anyone who is authorized verbally or in writing by the prescription holder to hold a prescription on their behalf has committed no crime under Florida law. However, this only applies to those prescription drugs that are lawful in Florida.
You Only Temporarily Possess The Drug
In Florida, the prosecutor has to show that you either actually possessed the drug or had constructive possession of the drug. Particularly, the evidence has to show that you consciously and substantially possessed the drug rather than did so in an involuntary or superficial way. Some Florida courts have interpreted possession to mean that you intended to possess the drug. If the prosecutor cannot prove that you did more than temporarily possess the drug, such as by accident, then the case against you should get thrown out.
Florida Criminal Defense Attorneys
There are many legal challenges and factual defenses to a drug possession offense that a seasoned criminal defense attorney can make. Remember that the Florida prosecutor’s primary goal is to prove beyond a reasonable doubt that you possessed drugs illegally. If you do not have an experienced criminal defense attorney on your side, your problems could worsen. Getting an attorney involved early is essential for the purposes of building a viable defensive strategy. Law Offices of Greg Rosenfeld, P.A. knows this. Our attorney has extensive experience protecting the rights of Florida clients. If you have been charged with a drug possession offense, then call (561) 902-1122 or contact us online for a free consultation regarding your case.