SARASOTA POSSESSION OF A CONTROLLED SUBSTANCE ATTORNEY

POSSESSION OF A CONTROLLED SUBSTANCE

 

Possession of a controlled substance in Florida refers to possession of one of the many substances listed in Florida Statute 893.03, known as the Florida Comprehensive Drug Abuse Prevention and Control Act.  There are literally hundreds and hundreds of chemicals listed in five main categories, known as “schedules.”  

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Basically, possession of a small amount of any one of the hundreds of chemicals listed in Schedule’s 1-4 is a third-degree felony, punishable by up to 5 years in prison.  Possession of one of the chemicals listed in Schedule 5 is a misdemeanor.

 

Defenses to Possession of a Controlled Substance Cases

 

• Constructive Possession

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Constructive possession is often a big issue in drug possession cases.  Many people charged with possession of drugs have no idea about constructive possession and the cop investigating your case is under no obligation to tell you if this issue exists.

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Basically, constructive possession is when a controlled substance (illegal drug or substance) is found somewhere other than on the defendant’s person and there are multiple people present (typically in a car or house). 

 

Law enforcement will oftentimes arrest everyone present. However, and this is very important, not everyone charged and arrested can later be successfully prosecuted.

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Constructive Possession Cases can be bad for prosecutors.

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There are two additional things that a prosecutor needs to be able to prove in order to successfully prosecute a constructive possession case: 

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(1) That the person had dominion and control over the contraband, and 

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(2) that the person had knowledge it was there. 

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It is not enough that the person was simply close to the drugs.

 

Being close to the drugs is not enough.  There need to be specific facts to indicate that the person knew the drugs were there (assuming they were not in plain view) and had the ability to control them (essentially that the drugs were theirs to do what they please with).  

 

Oftentimes in constructive possession cases, absent an admission or confession of some sort, the state does not have ample evidence to successfully convict the person.  

 

These are extremely fact specific cases (they often turn on the unique facts in your case).  This is one reason why it is important to have a criminal defense lawyer evaluate your case to determine whether there is a constructive possession issue present.

 

• Illegal search and seizure

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The law on what constitutes an illegal search and seizure is vast and complicated and only an experienced criminal defense attorney will be able to tell if you, in fact, were illegally searched or detained.  

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Some issues commonly seen are:

 

Bad vehicular stops

 

Such as when a car is stopped for a wrong reason or for a made-up reason.

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Illegal detentions

 

These are very common and involve a person stopped and detained when law enforcement does not have the necessary reasonable suspicion or probable cause to stop and detain the person.

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Illegal searches

 

When an individual’s person, belongings, vehicle, and/or home is searched illegally and without the necessary reasonable suspicion or probable cause.  

 

It takes a skilled criminal defense attorney who is up on the current state of the law to determine whether you were, given the specific facts of your case, illegally detained and searched.

 

• Entrapment

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Entrapment occurs when the police (or people working with the police) induce or encourage a person to commit a crime when the person was not otherwise predisposed to commit the crime in the first place.  

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A person prosecuted for a crime will be acquitted (found not guilty) if the person proves that his or her criminal conduct occurred as a result of government entrapment.

 

• Prescription Defense

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A prescription essentially acts as a license allowing the individual to possess the substance listed in the prescription.  If you have ever had a prescription to a substance that you have later been arrested for possessing, it is important to bring this to the attention of your attorney.  Oftentimes it will result in the prosecutor dropping the charges. 

 

Also, in Florida, it is not necessarily illegal for a person to hold a prescribed substance for someone else.  This commonly occurs in a caregiver situation, when it may be necessary for a person to hold a prescribed substance for someone else or to transport it from one place to another.

 

• Overdose Defense

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A person acting in good faith who seeks medical assistance (calls 911, helps get one to the hospital, etc.) for an individual experiencing, or believed to be experiencing, a drug-related overdose may not be arrested, charged, prosecuted, or penalized for a violation of drug possession offenses under Florida law.  

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Keep in mind that, if there is evidence of intent to sell (such as many small baggies, a scale, etc.), law enforcement will often try to “get around” this law by charging possession with intent to sell, which is not covered in the overdose “good Samaritan” law.

 

• There are many other defenses available

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Whether a defense is available to you will often turn on the unique facts of your specific case.  Please contact us and we will take the time to evaluate your case and determine what possible defenses are available.