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Drug laws in the state of Florida are considered some of the strictest in the United States. From the list of banned substances, to enforcement of the law, to the actual penalties for drug crimes, it’s clear these crimes are rigidly regulated and can have life-altering consequences. It’s imperative that anyone charged with possession have an attorney who knows the specifics of each law, how they impact sentencing guidelines, and can inform you of your legal options.

What Constitutes a Drug Possession Charge in Florida?

Possession itself requires a very specific charge. Police must charge a defendant with either actual possession or constructive possession.

Actual Possession

This is possession in the classic sense-- when the drugs are found on the defendant’s person. A gram of cocaine in someone’s pocket would be an example. They can be charged with actual possession if the drugs are within reasonable reaching distance.

For example, if the police conduct a legal search of someone’s home and find the person sitting at the table with drugs in front of them, actual possession still applies even though the substance was not literally attached to the defendant.

Constructive Possession

This area of possession is a little more nuanced and presumes both knowledge of the drug and control over it. The broader nature of constructive possession means that proving it can be more challenging for the police–and therefore requires the defendant to have a skilled attorney in their corner. It also means more individuals can potentially be charged with the crime.

Here’s an example: four young people are renting a house together. Only one of the roommates is dabbling in drug use. Perhaps they are arrested for actual possession and admit to the police that the rest of their stash is at the house. Police come to the residence, perform a legal search, and find the remaining drugs.

Are the other three roommates subject to criminal charges? That will depend on their level of knowledge and control–and the ability of the authorities to prove it.

Police must first prove that any roommate charged was aware of the drugs. This is much more specific than simply having a general awareness of the original roommate's drug use. Constructive possession requires specific knowledge that the drugs were in the house and where they were.

It must also be established that anyone charged with constructive possession had control over the drugs. Part of this will involve the knowledge of where they were. If the drugs were locked up somewhere and the original roommate had the only key, then it is unlikely to matter if any of the three roommates knew about it. The key here is that they had no access to the drugs. On the other hand, if the drugs were tossed on top of a dresser and anyone could have taken them, then control might be established.

The area of control is a considerable gray area. If you’re one of the three roommates who wasn’t using the drugs, you might not feel like you have control over what’s in the fourth person’s room, regardless of how accessible they might be. A prosecutor might allege differently. It’s up to your criminal defense lawyer to make sure your case is stated in a crystal-clear manner.

Illegal Drugs in Florida

The list of banned substances in the state of Florida is extensive and outlined in Chapter 893 of the state code. The drugs are then broken up into five different schedules. These schedules are extensive but looking at the extremes on both ends can give us a sense of how Florida law deals with drug use.

Schedule I Drugs

Schedule I contains the drugs considered the most serious, those the state has defined as having a high likelihood of abuse and absolutely no valid medical purpose. Heroin would be a prime example of a Schedule I banned substance.

Schedule V Drugs

At the other end of the spectrum, Schedule V includes drugs that might be used for a perfectly legitimate reason and are considered to have the lowest likelihood of abuse. These are often drugs that can be used with a prescription but are obtained in another way. An example is Lyrica, a drug that a doctor might prescribe for nerve and muscle pain. A patient who gets the drug on the black market is using it illegally.

Three other schedules lie in between these two opposite ends of the spectrum. In all cases, the state of Florida weighs the potential for abuse/addiction against the legitimate medical use in determining what schedule a drug should be slotted.

Marijuana in Florida

One important note–while there are 18 states that have legalized recreational use of marijuana, Florida is not one of them. Florida has approved cannabis for medical purposes, but even here the legal uses are very strictly defined. If you use medical marijuana, make sure you’re following proper protocols. Marijuana is typically considered a Schedule V drug, but if possessed in quantities of 25 pounds or more, the defendant can be charged with a first-degree felony.

The Penalties

The penalty for a drug conviction will primarily depend on what Schedule substance the defendant possessed and in what quantity.

On the high end, possession 10 or more grams of a Schedule I drug is a first-degree felony. The defendant may face up to 30 years of prison time and a fine of up to $10,000.

On the low end, possession of less than 20 grams of a Schedule V drug can be classified as a misdemeanor offense. It will likely be charged as first-degree, the most serious of misdemeanors, and may be subject to a year of jail time and up to $1,000 in fines.

In between these opposite ends of the spectrum, prosecutors might also charge a defendant with second-degree felony possession, with a potential for 15 years in prison. Third-degree felony possession is also possible and can result in up to 5 years of jail time.

Regardless of what drug is involved, even if it falls under Schedule V, if the quantity exceeds 20 grams, a felony charge is possible.

The potential sentences discussed above are all maximums. There is no guarantee that a judge will hand down a sentence of that severity. Prosecutors do have wiggle room to bargain in a plea agreement and recommend a sentence that is less than the maximum. But there are also minimum sentences for drug offenses in Florida that prosecutors and judges are bound by.

Each crime will have its own specific guideline, but it’s not unusual for someone charged with possession to face a minimum of three years’ jail time and a $50,000 fine. Furthermore, Florida law stipulates that anyone who goes to prison must serve at least 85 percent of their sentence before they are eligible for parole.

Even if the charge is a misdemeanor and the prosecutor is willing to deal, the absolute minimum consequence is losing one’s driver’s license for six months. In the context of other sentences we’re talking about, this doesn’t seem like much. But let’s go back to our example where three roommates were charged because the fourth person had drugs. If you’re in the shoes of an innocent person, Then, staring at an inability to drive for the short-term, and a drug record for the long-term, looks quite serious.

Drug Court in Florida

Florida law is strict when it comes to drug crimes, but there are options for those who have no previous felony convictions. So long as the current charge is no greater than a second-degree felony, the defendant might be eligible for the Drug Court program.

Drug Court aims at rehabilitation rather than punishment. Participants go to counseling, get treatment, and submit to random drug testing. The defendant who complies with the requirements, including meeting with probation officers, can have their charges dismissed.

Let Our Team Help You

The consequences of a drug possession charge are severe. You need a lawyer who sees your case as much more than just another one on their docket. Your defense lawyer must be committed to digging into every detail of your case, knowing every nuance of the law and–above all–fighting for your rights, your freedom, and your future.

Attorney Armando J. Hernandez, P.A. knows how to represent the best interests of his clients. Before becoming a criminal defense lawyer, he was a prosecutor. With literally thousands of cases to support his experience, Attorney Hernandez and his team know the system and how it can work both for–and against--you.

Don’t settle when it comes to your legal defense. Call us today at (305) 400-0074 or contact us online to set up a consultation.

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