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(AKA Possession of Fake Weed)

Reports of fake weed causing psychosis and death led to nationwide panic and the Florida legislature banning synthetic cannabinoids. 


At one time legal in the State of Florida, fake marijuana (synthetic cannabinoids) is now charged as a third-degree felony punishable by up to five years in prison, if the person is found with more than three grams.  Possession of under three grams is a misdemeanor.


What is fake marijuana?


There are hundreds of known chemical synthetic cannabinoids. The chemicals are often sprayed on to plant material resembling marijuana, packaged in colorful foil packets, and sold as "herbal incense," “K2”, “spice”, or "fake weed." The "fake weed" is usually smoked in the same fashion as traditional marijuana (even though the packaging usually indicates: "not for human consumption.")

Law enforcement sometimes arrests people and charges them with possession of a synthetic cannabinoid without actually knowing whether the substance is in fact banned or not. 

Ultimately, the state has the burden to prove that the substance they are claiming is illegal is, in fact, illegal.  This will usually involve the substance being tested in a state sanctioned laboratory to determine if the substance is a synthetic cannabinoid. 


Defenses to Possession of Synthetic Cannabinoid Cases


  • Constructive Possession

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.


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.

Constructive possession cases can be bad for prosecutors.

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


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


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

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

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.  

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.

  • 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.

  • 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

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.  

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.


  • Overdose Defense

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.  

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

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.

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