Drug Possession

Florida Law, under F. S. 893.13(6) defines possession of a controlled substance as the ability to exercise the right of ownership, control or management, over the drug.

The law requires the State to prove Possession of a Controlled Substance in one of two ways:

• Actual Possession
• Constructive Possession

Actual possession occurs when the controlled substance is found on his or hers’ person.

Constructive Possession requires the State to prove that the controlled substance’s presence is within the knowledge of a person and that the individual has dominion and control over the controlled substance.

Constructive Possession is a more difficult standard for the State to prove their case.

A classic example is when a driver or passenger of a vehicle is charged with possession of a controlled substance found under the seat by law enforcement. The State may attempt to prove constructive possession. However, proximity alone is not sufficient to prove constructive possession. The State would be required to show other evidence such as a confession to secure a conviction.

Joint Possession: It is possible for more than one person to be in constructive possession of the same controlled substance. This would occur during situations when evidences exists that the individuals have knowledge, control, and dominion of the controlled substance.

When officers encounter situations when they cannot exclusively determine who is in possession of a particular controlled substance they may arrest all the individuals at the scene claiming joint possession. An experienced criminal defense attorney will challenge these arrests because they often lack the necessary elements to prove constructive possession.

Drug Possession Penalties

Attorney, Dave Simmons, is an experienced drug charge lawyer and aggressively defends his clients against some of the most commonly charged crimes in Florida involving possession of a controlled substances and the applicable penalties including the following:

• Possession Cannabis (Marijuana) Less than 20g: is defined by Fla. Stat as a First Degree Misdemeanor and is punishable by a maximum penalty of (1) year of probation; 364 Days County Jail; and up to a $1,000.00 fine.

  • Pursuant to Fla. Stat. 322.055 any person who is convicted of Possession of Cannabis shall have their Driver’s License revoked for a period of (1) year by the Florida DHSMV.

• Possession Cannabis 20g or more: is classified by Fla. Stat. as a Third Degree Felony punishable by a maximum penalty of (5) years of probation; (5) years in Florida State Prison; and up to a 5,000.00 fine.

  • Pursuant to Fla. Stat. 322.055 any person who is convicted of Possession of Cannabis shall have their Driver’s License revoked for a period of (1) year by the Florida DHSMV.

• Possession Cocaine: is defined by Fla. Stat. as a Third Degree Felony punishable by a maximum penalty of (5) years of Probation; up to a $5,000.00; and (5) years Florida State Prison.

  • Pursuant to Fla. Stat. 322.055 any person who is convicted of Possession of Cocaine shall have their Driver’s License revoked for a period of (1) year by the Florida DHSMV.

• Possession Oxycodone Less than 4g: is defined by Fla. Stat. as a Third Degree Felony to possess less than four grams of Oxycodone without a valid prescription. As a Third Degree Felony, the charge is punishable by a maximum penalty of (5) years of Probation; up to a $5,000.00; and (5) years Florida State Prison.

  • Pursuant to Fla. Stat. 322.055 any person who is convicted of Possession of Oxycodone will have their Driver’s License revoked for a period of (1) year by the Florida DHSMV.

  • It is important to note that the law allows for the entire pill to be weighed, not just the amount of Oxycodone in the pill, and if the total number of pills possessed weighs more than 10 grams, the charge would be elevated to the much more serious offense of Trafficking and subject to Florida’s Minimum-Mandatory Prison Sentence.

• Possession of Hydrocodone Less than 4g: is defined by Fla. Stat. as a Third Degree Felony to possess less than four grams of Oxycodone without a valid prescription. Hydrocodone is the generic name for brands such as Vicodin, Lortab and others. As a Third Degree Felony, the charge is punishable by a maximum penalty of (5) years of Probation; up to a $5,000.00; and (5) years Florida State Prison.

  • Pursuant to Fla. Stat. 322.055 any person who is convicted of Possession of Cocaine shall have their Driver’s License revoked for a period of (1) year by the Florida DHSMV.

  • It is important to note that the law allows for the entire pill to be weighed, not just the amount of Hydrocodone in the pill, and if the total number of pills possessed weighs more than 10 grams, the charge would be elevated to the much more serious offense of Trafficking and subject to Florida’s Minimum-Mandatory Prison Sentence.

Additionally, a conviction for drug possession and can have the following social and economic consequences:

• Mandatory driver’s license suspension for 1 year.
• Loss of employment and ineligibility for future employment including government jobs.
• Ineligibility and/or loss of financial aid for college and scholarships.

Defenses to Drug Possession

Being charged with a drug offense is a serious matter and requires and experience criminal defense attorney to evaluate the case and work towards the optimal resolution of the case. Fort Lauderdale drug possession attorney, Dave Simmons, at the Law Offices of Dave L. Simmons, P.A. will look to various defense strategies including the following:

• Motion to Suppress: an evidentiary hearing before the court contesting the legality of the detention. If the Court finds that the officer violated your constitutional rights, the Court would than “suppress the evidence” and preclude the State Attorney’s Office from utilizing the evidence in their case. This suppression of the evidence, known as the “Exclusionary Rule” is a very compelling ruling by the Court and often leads to the case being dismissed or the charges reduced. This type pf motion practice is invaluable to a skilled Broward Drug Charge Attorney.
• Lack of Evidence: The law requires the State to prove Possession a Controlled Substance in one of two ways: (1) Actual Possession; (2) Constructive Possession. Actual possession occurs when the controlled substance is found on his or hers’ person. Constructive Possession requires the State to prove that the controlled substance presence is within the knowledge of a person and that the individual has dominion and control of the controlled substance. Constructive Possession is a more difficult standard for the State to prove their case. A classic example is when a driver or passenger of a vehicle is charged with possession of a controlled substance found under the seat by law enforcement. The State may attempt to prove constructive possession. However, proximity alone is not sufficient to prove constructive possession. The State would be required to show other evidence such as a confession to secure a conviction.
• No Consent to Search: Another avenue police officers purse to conduct a warrantless search is through consent. When given proper consent, an officer may conduct a search without a warrant. The consent must come from someone authorized to give consent and the search must be within scope of the consent. However, officers often use “a show of authority” to obtain this consent. If the consent is not freely and voluntarily given, it is unlawfully obtained and subject to suppression. A skilled and experienced Ft. Lauderdale Drug Possession Attorney will evaluate your case looking for this defense
• Pre-Trial Diversion Programs: These are programs that allow for the dismissal of your case based upon successful admittance and completion of the program. These programs are operated by the State Attorney’s office and are generally, but not exclusively, reserved for first time, nonviolent offenders. In Broward County these programs include:
  • MDP: A misdemeanor diversion program.
  • Pre-Trial Intervention: A felony diversion program.
  • Drug Court: Both misdemeanor and felony diversion programs.

Fort Lauderdale drug possession lawyer, Dave Simmons, is committed to getting the most favorable results for his clients facing drug possession charges.

If you have been charged with possession of drugs in Broward County, contact Fort Lauderdale Criminal Defense Attorney, Dave Simmons, at the Law Offices of Dave L. Simmons, P.A. at (954) 765-3540