Florida law – specifically F.S. 893.13(6) – defines illegal possession of controlled substances as the ability to exercise right of ownership, control or management over the drug.
Fort Lauderdale defense lawyers at The Ansara Law Firm, know per this definition, the state recognizes two forms of possession:
Actual Possession of a drug means it’s in your hand or you have it in a container you’re carrying or it’s in your pocket.
Constructive Possession, meanwhile, refers to a situation in which defendant may not actually have the drug, but it’s in a place over which he or she has control or where he or she has hidden it. Prosecutors aiming to prove constructive possession of a controlled substance have to show two elements:
- Defendant had control over the drug
- Defendant knew the drugs were in his or her presence
So for example, a passenger in a vehicle may be accused of possession of drugs found under his or her seat. But prosecutors would need to show –either through a confession or some other evidence – defendant knew the drug was there and had control over it. Proximity alone isn’t going to be enough to establish control over the drug if defendant doesn’t know it’s there or the drug isn’t in a place over which defendant has control.
It is possible under state law for more than one person to be found in possession of the same controlled substances. This is known as Joint Possession. These would be situations where both people are found to have knowledge and control over the substance.
Often when police in traffic stops find drugs, but can’t pinpoint exactly who those drugs belong to, they allege joint possession and make multiple arrests. But many times, defense attorneys can successfully seek dismissal of those charges because the key elements of a possession charge aren’t proven.Florida Penalties for Drug Possession
Public attitudes toward drug use have relaxed considerably in the years since the failed “War on Drugs” of the 1980s and 1990s. People are more apt to see addiction as an illness, and those suffering it in need of medical intervention and social support, as opposed to criminal punishment. Still, many of those older, tougher statutes remain on the books, and prosecutors don’t hesitate to use them to their advantage.
The penalty for drug possession generally depends on the type of drug, how much of the drug and prior convictions.
For example, possession of marijuana is generally a misdemeanor, assuming the amount was less than 20 grams. As a first-degree misdemeanor, the charge carries up to one year in jail and/or probation, as well as a $1,000 fine and typically a two-year driver’s license suspension.
A defendant who is given just probation will often be subjected to random drug testing, be forced to shell out money for fines, prosecution and supervisions costs and court fees.
Additionally, a conviction can lead to:
- Ineligibility for certain government jobs.
- Ineligibility for certain forms of state financial aid for college, including the Bright Futures Scholarships.
- Mandatory driver’s license revocation.
Possession of marijuana in excess of 20 grams is considered a third-degree felony, punishable by up to 5 years in prison.
Similarly, other drugs for which possession is a misdemeanor in tiny amounts include:
- Synthetic Marijuana (K2, Spice, Bath Salts, etc.) (under 3 grams)
Possession of cocaine, a Schedule II controlled substance, is considered a third-degree felony, regardless of the amount (so long as it does not cross the threshold of a “trafficking amount”). This is true even if one is only carrying a bag of residue. That means defendants face:
- Up to 5 years in prison;
- Up to 5 years of probation;
- $5,000 in fines;
- Automatic one-year driver’s license revocation.
Other substances for which it is considered a third-degree felony for even trace amount of possession are:
- MDMA (Ecstasy)
- Methamphetamine / Crystal Meth
- Xanax (without a prescription)
- Hydrocodone (without a prescription)
- Oxycodone (without a prescription)
If you are accused of illegal drug possession in South Florida, an experienced criminal defense lawyer should examine all avenues to mitigate your risk of jail or prison time, or other harsh penalties.
Challenges to wrongfully-obtained evidence (i.e., illegal search and seizure) can result in suppression of evidence which may ultimately lead to a dismissal. So too can a showing that evidence obtained is quite weak or falls shy of burden of proof thresholds.
In many drug possession cases, particularly for first-time offenders, Fort Lauderdale defense lawyers can push for pre-trial diversion and substance abuse treatment alternatives. This can be especially helpful when the evidence is not in our favor, and in many cases, defendants can walk away after successful completion of the program with no criminal conviction that might mar future opportunities.
Other times, for those uninterested in treatment, negotiation of an advantageous plea bargain – usually on lesser charges and with minimally invasive probation – is a more desirable alternative.
Of course, our defense lawyers always prepare for the possibility of trial, as sometimes this can be the best option for a favorable resolution.
Contact the experienced Fort Lauderdale criminal defense lawyers at The Ansara Law Firm, by calling (954) 761-4011 or toll-free at (954) 761-4011.