Illegal Substances Defined
It is against the law in Florida to use, possess, make or sell any illegal drug or controlled substance, according to Florida Statute 893.13. An illegal substance is a mind-altering substance that cannot be purchased in stores or pharmacies. Some examples of an illegal substance are:
Controlled substances are prescription medication that can legally be consumed with a valid prescription. Common controlled substances that are the target of abuse, thus criminal activity, are stimulants and pain killers. Some examples of common controlled substances are:
A controlled substance is also illegal to use, possess, or sell if it is not used per the doctor’s instructions. It is illegal to sell a controlled substance regardless of whether it is your prescription. A person can even be charged with possession of a controlled substance if she or he travels with her or his medications outside of their original prescription container because the police cannot determine what the drugs are, if the person rightfully has the drugs, or if the person intended to distribute the pills.
The charge for an illegal or controlled substance depends on the amount of the drug and the circumstances surrounding discovery of the substance. Almost any possession of any type of drug is a felony, with the exception of a very small amount of Marijuana, which is a misdemeanor.
In order to be convicted of possession of an illegal or controlled substance, the prosecutor must prove, beyond a reasonable doubt, that you had control of the illegal substance and that you knew the substance was illegal. There are two types of “control” for the purpose of possession charges. If you have actual possession of the substance, you must have had the item on your person, such as in your pocket or hand. Constructive possession requires that the substance be somewhere that you have control and access to, such as the glove box of your car.
It is a crime to sell any type of illegal or controlled substance. Florida Statute 893.03 defines “sell” as transferring or delivering something to another person for money, something of value, or the promise thereof. The penalty of a sale charge is highly dependent on what type of drug was sold, and in what amount.
The prosecutor does not have to prove that you had the intent to sell the drugs if the circumstances indicate that you had a sufficient quantity or paraphernalia to be sold. For example; two Ecstasy pills in a small baggie is likely to be considered possession. Twenty Ecstasy pills, divided into two pills per small baggie, is likely to be considered possession with the intent to sell because a person can assume that it was too many pills for personal consumption, and packaged two at a time would make for an easy way to sell or distribute the Ecstasy.
Multiple possession charges can be combined to prove “intent to sell,” so often this charge is not a reflection of actual intent, but rather a reflection of a person who had different types of drugs, money, or paraphernalia at the same time.
Trafficking is an extremely serious drug offense, usually a first-degree felony, related to manufacturing, distribution, transportation and large-scale drug operations. Florida tends to experience frequent drug trafficking, partly because the crime of trafficking can occur across state and national borders.
The police and prosecutors determine whether a crime is trafficking based on the quantity, packaging, location, and circumstances of the drug possession. Similar to possession with intent to sell, the prosecutor does not have to prove that you had the specific intent to traffic; rather, that the circumstances were such that it can be inferred that you were intending to distribute large quantities of substances for profit. For example; 2,000 pounds of bricks of Marijuana on a ship, docked at port indicate the drugs are being trafficked for distribution.
The penalties for a possession charge depend on the type of substance possessed. A small amount of Marijuana is a misdemeanor, which could receive a maximum of one (1) year in jail and $1,000 in fines. If the possession is a felony, as most are, the punishment could be a maximum of 15 years in prison and a $10,000 fine.
Most first time offenders will be extended an offer to participate in diversion services or drug court, which may avoid adjudication and jail. Defendants should proceed carefully because entering a guilty plea to a felony can impact potential employment, military service, civil/ fundamental rights, and more. For repeat offenders, the punishments increase dramatically for each possession, regardless of the type of drug.
Possession with intent to sell is a first-degree felony, which is punishable by 30 years in jail and up to $10,000 in fines under 893.13. The penalties are affected by criminal history and other factors.
Trafficking is a first-degree felony. Depending on the type of drug and the quantity being trafficked, you could face up to 25 years in prison and $500,000 in fines. The least severe trafficking charge is for trafficking between 25 and 2,000 pounds of Marijuana, which is punishable by up to three (3) years in jail and a $25,000 fine. The most severe trafficking charge is for trafficking over 28 grams of Heroin, which carries a 25-year prison sentence and a $500,000 fine.
A common defense to any drug charge is that you did not know the substance was an illegal drug, or even that the substance was there. For example; if you are a passenger in a vehicle where there are drugs in the glove box, you cannot be guilty of possession because you did not know the drug was there.
Procedural defenses are available for any type of drug charge as well. Procedural defenses include unlawful search and seizure, entrapment, and violation of individual rights.
A very problematic area of litigation has developed in the use of drug sniffing dogs. The dogs are considered police officers, so any search conducted by the dog is also considered a police search. Police dogs are permitted by law to sniff some objects, like luggage, but are not permitted to enter a vehicle to sniff without the owner’s consent or probable cause. Many cases have been won by defendants when the police extend the time for a police search beyond the amount of time they needed to issue the ticket. Cresswell v. State, 564 So. 2d 480 (Fla. 1990). Many times the police extend the stop in order to allow a drug-sniffing dog to arrive on scene to possibly alert to substances. This is potentially a violation of your Constitutional rights, and is a strong defense.
Call Attorney David Cronin at (904) 239-6047 for your free consultation to get started on defending you from your drug charge.
The Law Offices of David Cronin offer same day representation. Let our office get started on your case right away, because the prosecution is wasting no time building a case against you, so you shouldn’t waste any time fighting back.