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Florida Drug Possession

Posted by Larry Avallone | Jul 10, 2020 | 0 Comments

Most drug offenses are felony level crimes. Facing this type of charge can be life changing. If you were arrested and charged with drugs possession, the process probably left you confused and anxious wondering what is going to happen next. The first step is to understand Florida's drug possession laws.

What constitutes possession of drugs?

Possession of drugs constitutes an act wherein a person does not sell, distribute, or manufacture the drugs and the person possesses the substance for his own personal use. However, the evidence may indicate an intention to sell the substance, rather than personal use. This may result in serious penalties for a person accused of such criminal acts. It shall be noted that in every case, it is incumbent on the prosecutor to prove that the person was in control of the substance.

Difference between actual and constructive possession?

A person can possess illegal drugs in one of two ways, actual or constructive possession. Actual possession is when the drugs are found physically on the body of the accused person. Constructive possession is when such drugs were not present on the body of that person but is in a place where the person has control. Placing the drugs in underwear, socks or pockets would be an example of actual possession. Knowledge and willful possession of drugs are essential in the cases of drug possession and the prosecutor needs to prove this fact.

A person charged with possession of drugs may face collateral consequences such as suspension of their driver's license, loss of a professional license, lesser probability of housing opportunities, and a felony drug conviction can impact access to public assistance funds.

Criminal liabilities for possession of drugs?

The state legislature has passed rigorous laws in regard to the possession and use of these illegal substances.

There is a difference in the level of charges which is based on the type of drug and the quantity which one possesses. For example, if a person is found in possession of less than 28 grams of cocaine, he may be charged with a third-degree felony (punishable up to five years in prison and a fine up to $5000) and in the case of possession of 28 or more grams of cocaine, the person may be charged with drug trafficking.

Likewise, possession of marijuana in the absence of a prescription, is a criminal offense and any person carrying less than 20 grams of marijuana shall be charged with a misdemeanor. Any person having possession of more than 20 grams of marijuana would be charged with a felony.

Similarly, there are different charges for possession of oxycodone, heroin, morphine, opium, etc. and dependent upon the quantity which one has. All the above-mentioned offenses and the respective penalties are governed by Florida Statute Chapter 893 named as Drug Abuse Prevention and Control Act.

What defenses do I have if I am accused of drug possession?

As we are aware that the Floridian legislature has adopted a strict approach to penalize the possession of illegal drugs. However, there are several defenses available under the law for such individuals.

One of the possible defenses may include, having a valid prescription for the substance, even if the prescription was not on the person at the time of the police contact. In case there was no prescription, the person may also challenge that the stop and search by the police officer was unlawful. For the officer to stop you, the mandatory requirement is to have reasonable suspicion that you have or were about to commit an offense. A baseless stop and search make such search unlawful.

Knowledge of the substance must also be proved. If a person who is charged with illegal drug possession did not have knowledge of the presence of the substance, then the case cannot move forward. It is the prosecutor who must prove the knowledge element. For example, a person is traveling in a shared car, with other people may not know that there are illegal drugs in the car.

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About the Author

Larry Avallone

Larry Avallone is a Volusia County Florida based Board Certified Criminal Trial Attorney. He has been a Deputy Sheriff and a State Prosecutor and he exclusively practices criminal defense law.


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