There are several ways to defend against drug charges and I have handled hundreds of these types of cases, several of which resulted in a “Not Guilty” verdict at trial or were dismissed by way of a pretrial motion to suppress. Under Florida law, certain drugs are labeled “controlled substances.” Some people may think that drug possession is not a big deal, however, several judges have seen the harm that drugs cause and take the cases very seriously. Drugs are often considered to be linked to more serious crime such as theft and violence. First-time offenders may get off with a small fine, probation, or a diversion program but there are serious consequences for those classified as dealing in drugs or possessing large quantities.
A conviction of a drug offense, even a misdemeanor such as possession of cannabis (marijuana) can have serious consequences far beyond what punishment you may receive in court. Drug convictions can lead to suspension of your driver’s license, loss of federally funded housing, loss of financial aid and ineligibility for public funds such as welfare benefits and student loans, loss of voting rights (for felony convictions), ineligibility for jury duty, and possible deportation. Judges and attorneys are not always required to warn people of these collateral consequences. They are required to advise people of any deportation consequences in accordance with United States Supreme Court Case Padilla v Commonwealth of Kentucky.
Elements of a Drug / Controlled Substance Offense
To be found guilty of a drug offense, the State must prove the following elements:
- Defendant knew of the presence of the drug
- Defendant exercised control or ownership over the drug
- The substance actually was what it is alleged to be
Florida Law on Possession of a Controlled Substance – Florida Statute 893.13(6)
Defenses to Drug / Controlled Substance Offenses:
- Valid Prescription
If you hold a valid prescription for a controlled substance, that is a defense to illegal possession. Also if you have the authority to hold a substance for another person who has a valid prescription, that is also a defense.
- Constructive Possession
Constructive possession means possession that is not on the actual person. In other words, it’s not in the person’s hands, pockets, or within ready reach. If an item is not in the actual possession of a person, the State has to prove the person knew of its presence and had the ability to control the item. If the item is found in a concealed place such as the trunk of a car and there are multiple people in the car, and there is no other evidence showing who the item belongs to, the State would not be able to prove possession. Keep in mind that joint possession of a controlled substance is also possible.
- Lack of knowledge as to the illicit nature of the drug
This is an affirmative defense that has to be raised by the defendant. It means that the person did not know that the substance was an illegal drug. Keep in mind that ignorance to the law is not a defense and that the jury is allowed to presume the person was aware of the illicit nature of the controlled substance if he/she knew of the presence of the substance and exercised control or ownership over it.
- It is not a drug
Usually, the State will have to test the drug and show proof of the chemical make up of the drug. This testing is usually done by the Florida Department of Law Enforcement (FDLE). The State will usually have an analyst come in and testify as to the testing results. The Defense can sometimes request independent testing upon reasonable grounds.
Entrapment by the government is an available defense but it is very difficult for the Defense to prove. The Defense must show that the Defendant was not predisposed to the action and that is often difficult to do. The entrapment defense is typically put forth in a pretrial motion to dismiss.
- Illegal Search and Seizure
Probably the most common way to “beat” a drug charge is to challenge the legality of the police action which lead to the discovery of the drug. If the traffic stop which led to the arrest was illegal, the drugs may be suppressed from evidence and therefore inadmissible at trial. Once the drugs are suppressed, the state usually must drop the charge.
- Not Guilty at Trial!
There are ways to defend a case at trial other than those discussed above. The prosecution must prove their case beyond all reasonable doubt and there are many ways to poke holes in the case. I have obtained not guilty verdicts on several drug cases. Each case is different and requires a defense tailored to the specific facts at hand. Call me today to discuss your case and see what defenses you have!
Common Misdemeanor Drug Offenses
- Possession of Cannabis (Marijuana) under 20 grams
- Possession of Paraphernalia
- Delivery of Cannabis without consideration (without payment)
- Up to one year jail or probation, or a combination totaling less than 1 year
- Up to $500 fine
- Driver license Suspension (applies to a conviction of certain offenses)
Note: First-time offenders may qualify for a pretrial diversion program which can result in all charges being dropped. The program is not automatic and has requirements such as community service, drug testing, and maintaining a clean record. Those who complete this program successfully will have their case dropped by the prosecution and should be eligible to have the case expunged.
Common Felony Drug Offenses
- Possession of Cannabis over 20 grams
- Possession of Cocaine, Heroin, Opiates, and other controlled substances
- Possession with intent to sell or deliver
- Sale or Delivery of a Controlled Substance
- Drug Trafficking
- Obtaining a controlled substance by fraud/prescription fraud (third-degree Felony)
Possible Punishments for Felony Drug Offenses
The level of punishment depends on the degree of level of the felony offense, the type of drug, and the amount (weight) of the drug.
- Third-degree felonies are punishable by up to 5 years in prison and up to $5,000 fine
- Second-degree felonies are punishable by up to 15 years in prison and up to a $10,000 fine
- Minimum Mandatory prison sentences apply to certain trafficking charges
Note: Florida law also provides for increased sentences for defendants with certain prior convictions.
Marijuana (Cannabis) Laws in Florida
|Possession||Less than 20 grams||M1||1 year maximum|
|Possession||Over 20 grams||F3||5 year maximum|
|Possession (Trafficking)||Over 25 pounds||F1||3 year minimum / 25 year maximum|
|Possession with Intent to Sell||Under 25 pounds||F3||5 year maximum|
|Delivery without Consideration||Less than 20 grams||M1||1 year maximum|
|Sale||Under 25 pounds||F3||5 year maximum|
|Trafficking||20 – 2,000 pounds||F1||3 year minimum, $25,000 fine|
|Trafficking||2,000 – 10,000 pounds||F1||7 year minimum, $50,000 fine|
|Trafficking||Over 10,000 pounds||F1||15 year minimum, $200,000 fine|
Prescription Fraud / Obtaining a Controlled Substance by Fraud
Fla. Stat. 893.7(a)9
The prosecution must prove three elements beyond a reasonable doubt:
- The Defendant acquired or obtained, or attempted to acquire or obtain a controlled substance (listed drug)
- The substance was actually (listed drug).
- The Defendant acquired or obtained, or attempted to acquired or obtain the substance by misrepresentation, fraud, forgery, deception, or subterfuge.
This type of crime is a Felony of the third degree (F3) and is punishable by up to 5 years in Prison or 5 years of probation. Prescription fraud is something that the authorities have recently cracked down. Central Florida has been a hub for pill mills for years. Many pharmacies are paying closer attention to this and are on the lookout. I have often seen cases where the pharmacist has alerted law enforcement and they have video footage of the transaction. Falsifying prescriptions, altering prescriptions, counterfeiting prescriptions, impersonating a doctor to issue a prescription, stealing prescription pads, traveling from doctor to doctor also known as doctor shopping, using a false name to obtain someone else’s prescription, increasing the dosage, and impersonating a pharmacists to fill a fraudulent prescription are common ways that people get in trouble for this type of offense.