Despite the federal government’s warnings and it’s “War on Drugs,” every year thousands of Americans are arrested on drug possession charges. Many of them end up behind bars for the possession of very small amounts of illegal substances, and when aggravating circumstances are present (such as the possession of illegal drugs near or around children), a misdemeanor can rapidly turn into a felony – which means jail time, hefty fines, and a slew of serious repercussions.
Unfortunately for Floridians in this situation, our state has the dubious reputation of having some of the harshest drug possession laws in the nation. The rise of powerful drug cartels, the influx of cocaine into the United States, and the violence associated with drug trafficking and use that plagued Miami in the early 1980s have set the stage for zero-tolerance drug laws, enacted as a measure to control their circulation in and out of the state.
However, rather than utilizing limited resources for locking away violent felons and career criminals, these policies have led to a prison system excessively focusing on punishing thousands of relatively peaceful Americans with stiff sentences for non-violent drug offenses. According to a Pew Center study, Florida inmates convicted of non-violent crimes spent 194 percent more time behind bars than they did in 1990, with the average sentence of 9 months served in 1990 increasing to an average of 2.3 years in 2009.
Predictably, the tough-on-crime policies requesting a rise in time served for drug offenders – which was roughly the same as that for violent criminals – and the tightening of parole standards did not cut crime or reduce recidivism. It only contributed to Florida’s burgeoning prison population and the increase of prison costs by $1.4 billion annually.
What all this means for folks who have been charged with drug possession in Florida is that they absolutely have to take it seriously. Being thrown in jail or forced to pay thousands of dollars in fines is only the beginning of what a conviction entails. Since it is public for anyone to see, a criminal record can follow you around for the rest of your life, destroying future housing and career opportunities and interfering with every other aspect of your life.
To have any hope of successfully fighting your charge and getting a positive outcome, you must build a strong defense, and a good place to start is to look at what Florida defines as possession of controlled substances and its associated laws and penalties.
What Constitutes “Possession” in the State of Florida?
Drug possession is an offense by someone who did not manufacture, distribute, or sell the controlled substance, but rather held the controlled substance for personal use. Two types of possession are defined by Florida state law:
- Actual possession of a drug means that the substance in question is in your physical custody. The presence of drugs on your person or belongings is considered actual possession.
- Constructive possession doesn’t require you to have actual physical contact with the drugs. As long as you know where they are and are able to physically control them, you are in constructive possession of a controlled substance. If you have drugs in the glove compartment of your car, for instance, this would qualify as constructive possession.
But what exactly is a controlled substance? Florida closely follows the federal classification of controlled dangerous substances (CDS) , listing drugs in five different “schedules,” with the most likely to be abused included in Schedule I, and the least in Schedule V.
Schedule I drugs are controlled substances that have a high likelihood of abuse and do not have any accepted medical uses. Heroin, GHB, and LSD are all Schedule I drugs, given their high probability of abuse. Marijuana is also considered a Schedule I drug under state law, despite the growing body of research stating its many documented medical uses.
Schedule II drugs also have a high likelihood of abuse, but they have some accepted medical uses – with serious restrictions. Abusing these drugs – cocaine, crystal meth, opium, morphine, and oxycodone – can lead to severe physical and psychological dependence, which is why they are considered dangerous and punished accordingly.
Schedule III drugs have a lower likelihood of abuse than Schedule I or II drugs, and they also have accepted medical uses. However, abusing these types of drugs can still lead to high psychological dependence and low-to-moderate physical dependence. Anabolic steroids and ketamine are examples of Schedule III drugs.
Schedule IV drugs such as diazepam have a lower likelihood of abuse than Schedule III drugs, have accepted medical uses, and their abuse can lead to limited dependence both physical and psychological.
Schedule V drugs have the lowest likelihood of abuse, have a current accepted medical use, and are not likely to lead to addiction. Medicines that have small amounts of certain narcotics are included in Schedule V drugs.
Potential Penalties for Florida Drug Possession
Depending on the Schedule of the drug and the amount of drugs you allegedly had in your possession, you can be charged with a misdemeanor or felony offense. Misdemeanor crimes are less serious than felony crimes and have less severe penalties.
First Degree Misdemeanor Possession. Misdemeanor possession of the first degree is punishable by a fine up to $1,000, up to one year in jail, or both. You can be charged with a first-degree misdemeanor if you are in possession of 20 grams or less of marijuana and up to three grams of many synthetic marijuana drugs.
First Degree Felony Possession. Felony possession of the first degree is punishable by a fine up to $10,000, up to 30 years in jail, or both. This is the most severe drug possession offense. You can be charged with a first-degree felony if you are in possession of over 10 grams of hallucinogens, GBL, GHB, BD, and other drugs.
Third Degree Felony Possession. Felony possession of the third degree is punishable by a fine up to $5,000, up to 5 years in jail, or both. If you are caught with drugs not covered under the first-degree misdemeanor or first-degree felony category, you can be charged with a third-degree felony.
As with most crimes, if you have multiple convictions you will be punished more severely. Two or more first degree felony convictions can result in a possible life prison sentence, while two or more third degree felony convictions can result in a possible 10-year prison sentence. If you have four or more misdemeanor convictions and are caught with drugs, you can be sentenced to 6 months to one year in jail, mandated residential drug treatment program, or house arrest for six months to 364 days.
Additionally, in certain situations you may be charged with related drug offenses. For instance, if you are charged with possession of a prescription drug, you may also be charged with prescription drug fraud, depending on how you obtained the substance. Possessing a large amount of illegal drugs can bring on a charge of possession with intent to sell, with penalties ranging from 5 to 15 years in prison.
How Can You Fight Back?
Regardless of the nature of the criminal charges and surrounding circumstances, you need to secure the help of a skilled criminal lawyer who can fight the charges against you with skill. Florida prosecutors are known to be aggressive in trying to get harsh drug convictions, and the lack of experienced representation can often be used to their advantage.
To prove your innocence in court, your lawyer may be able to use the “unwitting possession” argument, claiming that although drugs were found in your possession, you lacked the knowledge of it. For instance, if you borrowed a friend’s car, and the police discovered drugs in the glove box, your attorney can prove that you didn’t know the drugs were present, given that the car belongs to someone else. Regardless of whether the prosecution accuses you of actual or constructive possession, it must prove that you were aware that the drugs were present and planned to use or control them.
Another viable argument a skilled criminal defense lawyer can use to have your charges dropped is try to determine whether your Fourth Amendment rights were violated, as a result of the police not complying with search and seizure rules. If you are able to prove that the incriminating evidence was found through a constitutionally questionable search and seizure, that evidence can be ruled as inadmissible in court. Your attorney can also prove that the drugs found in your possession were prescribed by a doctor and you had the legal right to use them.
A drug conviction can and will impact your life if you do not fight back. Speak to an experienced Florida drug possession attorney about the charges against you and start building your defense as soon as possible.
About the Author:
Attorney David W. Olson is the founder of the Law Offices of David W. Olson in West Palm Beach. He has been practicing criminal law and successfully representing clients throughout the State of Florida for over 30 years. Throughout his legal career, Mr. Olson has been honored numerous times for both his dedication and excellence in criminal law. He proudly holds the Martindale-Hubbell AV Rating, as well as being recognized as a Top 100 Trial Lawyer (2013), in the Nation’s Top One Percent of attorneys (2015), and as a 10 Best Member of the American Institute of Criminal Law Attorneys (2015). He has even received commendations from members of congress and other public officials for the fantastic work that he’s done. Mr. Olson graduated from the University of Florida’s Fredric G. Levin College of Law in 1981 and has been a member of the Florida Bar since 1983.