ARTICLE OVERVIEW: If you are caught with drugs in your possession in the State of Florida, you can get into serious legal trouble. Because of Florida’s prime location for drug trafficking, its Drug Laws are among the most rigorous in the whole country, posing severe penalties for minimal amounts. This article reviews the legal process, potential penalties, and what you can do to defend yourself.
ESTIMATED READING TIME: Less than 10 minutes.
TABLE OF CONTENTS:
- Definitions
- Specific Laws
- The Legal Process in Florida
- Burden of Proof
- Sentencing
- Misdemeanor Possession
- Felony Possession
- Drug Schedules
- Other Penalties
- Alternative Sentencing
- When to Contact a Lawyer
- How to Find a Lawyer in Florida
- Your Questions
Basic Definitions
1. Actual possession of an illegal drug occurs when the controlled substance is in the defendant’s physical custody and is found in a pants pocket, backpack, in hand, etc.
2. Constructive possession exists when the defendant does not have actual physical possession of the controlled substance, but has knowledge about its location and has the ability to access or control the substance.
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Specific Laws
https://www.flsenate.gov/Laws/Statutes/2012/Chapter893/All
Section 893.03 lists controlled substances in five schedules:
http://www.flsenate.gov/Laws/Statutes/2014/893.03
Section 893.13 addresses illegal acts involving controlled substances (“drugs”):
http://www.flsenate.gov/Laws/Statutes/2014/893.13
Section 948.08 regulates the Pretrial intervention program:
https://www.flsenate.gov/laws/statutes/2011/948.08F
When you’re arrested for drug possession, consider drug rehab. Drug courts offer alternative sentencing and a clean record upon successful completion of addiction treatment.
The Legal Process in Florida
1. Arrest: Law Enforcement makes an arrest based upon the witnesses information. After arrest, most people are entitled to a bond.
2. First Appearance: This is a hearing held within the first 24 hours of the arrest.
3. Filing Decision: During this part of the process, an Assistant State Attorney reviews the case information, interviews, etc. and makes a charging decision. If the case is not filed, a “No Information Notice” is filed and the Defendant is released from custody if still in jail. All charges are dropped.
4. Arraignment: Within two weeks of the charging decision, the defendant goes to court and enters a plea of guilty or not guilty. At this time, the case is set for Trial. Subpoenas go out to all the witnesses listed. Victims have the right to be present at arraignment; however their presence is not required.
5. Depositions: This is a way where the State and Defense learn about the case. Florida law allows the Defense to interview witnesses before trial. If you are called as a witness, you will receive a subpoena and will be sworn prior to the deposition before an official court reporter. The Defendant will not be present.
6. Plea: A plea may be offered by the State to the Defendant. You will receive notification by phone or mail. Many cases are settled without witnesses having to go to trial.
7. Status Conference: This is a hearing held to advise the court if the Defense is ready to go to Trial.
8. Pre-Trial Conference: A hearing held two weeks before the trial.
9. Continuances: The State will try cases as quickly as possible. However, there are often circumstances that cannot be controlled which make continuance necessary
10. Trial: A Trial is held when witnesses are needed in court. Trials are normally held within 175 days of the arrest for a felony (called Speedy Trial). A Trial is normally held within 90 days for a misdemeanor or traffic case.
11. Sentencing: Once the defendant is found guilty or not guilty or enters a plea at trial, the Judge can set the case for sentencing. Victims will be notified by phone or mail about this date.
For more information, you can contact your Florida region’s State Attorney Office. A list of all 20 Florida State Attorney Offices can be found here.
Burden of Proof
1. LEGALITY. The prosecutor must present evidence that the material seized from the defendant’s possession is an illegal and controlled substance under Florida law.
2. KNOWLEDGE. The prosecutor must prove that the defendant actually knew or should have known about the illegal nature of the controlled substance and its presence.
3. CONTROL. The prosecutor must prove that the defendant had control over the controlled substance, including its location and presence.
Sentencing
A: To be honest, drug sentencing is rather strict.
The laws related to personal use of drugs in the State of Florida are categorized as felonies and are divided into three degrees. For example, a charge of drug possession can be a first, a second, or a third degree felony. A felony is a crime carrying a penalty of possible incarceration in a state prison facility. The most serious possession offense is felony possession of the first degree, and this felony holds the harshest sentences.
All other charges for possession can be filed as a misdemeanor. A misdemeanor offense is defined by Florida Law as offenses punishable by a maximum sentence of incarceration of up to one year in county jail.
See definitions of these categories in the misdemeanor and felony sections below. Also, see the section on alternative sentencing for more information on leniency in cases of drug dependence, addiction, or mental illness.
Misdemeanor Possession
The penalties for misdemeanor drug possession may result in a small fine, court mandated drug counseling, community service, and probation.
First Degree Misdemeanor Possession:
- Up to 20 grams of marijuana (except for legally possessed medical marijuana)
- A misdemeanor offender with at least 4 priors is subject to enhanced penalties.
SENTENCE: Up to 1 year jail time, and a fine as large as $1,000. Those with at least 4 prior convictions may be sentenced to 1 year jail time, mandatory treatment, or home detention up to a year.
NOTE HERE: Under Florida law, possession or use of Drug Paraphernalia is classified as First Degree Misdemeanor, with penalties that may include up to 1 year jail time or probation, and a $1,000 fine. “Drug Paraphernalia” is defined as any object or material intended for production, use or processing of a controlled substance. It includes any item that can be used in connection with illegal drugs. It can be divided into two main categories: those used to distribute drugs and those used to ingest drugs.
Some of the following objects are specifically listed as drug paraphernalia under federal law:
- Freebase cocaine kits, or paraphernalia used to smoke cocaine.
- Miniature spoons used for snorting cocaine.
- Pipes made of glass, wood, stone, plastic, or ceramic
- Roach clips, or objects used to hold burning materials like joints.
- Water pipes, bongs, and pipes made of clay.
Felony Possession
Third Degree Felony Possession: The definition for this charge includes the following drugs and their amounts:
- 20+ grams of marijuana (except for legally possessed medical marijuana)
- Up to 28 grams of cocaine
- Up to 10 grams of ecstasy (MDMA)
- Up to 1 gram of LSD
- Up to 4 grams of heroin/opiate
SENTENCE: Up to 5 years in prison.
Second Degree Felony Possession: This definition includes possession of chemicals used to manufacture drugs such as ecstasy, meth, and acid.
SENTENCE: Up to 15 years in prison, and fines as high as $10,000.
First Degree Felony Possession: The definition for this charge includes the following drugs and their amounts:
- More than 25 lbs marijuana
- More than 28 grams of cocaine
- More than 10 grams of ecstasy (MDMA)
- More than 1 grams LSD
- More than 4 grams of heroin/opiate.
SENTENCE: Up to 30 years in prison, and up to $250,000 in fines, depending on the type of drug and amounts.
Drug Schedules
Schedule I. These are drugs that have a high potential for abuse and have no accepted medical use.
Schedule II. These drug are consider to have a high potential for abuse, have an accepted medical use with severe restrictions, and their abuse has the potential for severe psychic and physical dependence.
Schedule III. This includes drugs that have less of a potential for abuse than Schedule I or II drugs, have an accepted medical use, and their abuse may lead to low or moderate physical dependence and high psychological dependence.
Schedule IV. These drugs are thought to have even lower potential for abuse than Schedule III drugs, have an acceptable medical use, and their abuse may lead to limited psychological and physical dependence in relation to Schedule III drugs.
Schedule V. Those that have low potential for abuse relative to the substances in Schedule IV and has a currently accepted medical use, and have a limited risk of physical or psychological dependence relative to substances Schedule IV. Schedule V drugs include medicines that contain very small amounts of specified narcotic drugs.
Other Penalties
- Inability to obtain a state license or certification.
- Inability to qualify for public housing.
- Inability to obtain certain employment.
- Ineligibility for some types of government employment.
- Ineligibility for certain college scholarship or financial aid.
- Probation.
- Suspension of a driving license.
Upon successful completion of Drug Court, charges will be dropped.
Sentencing Alternatives
- The person’s needs.
- The specific laws which apply to the charge(s).
- The person’s guilt or innocence.
In Florida, there are several sentencing alternatives available to a person accused of a drug possession charge. These include the following legal arguments made at specific stages in the process:
1. You can request a Pretrial Diversion.
A Pretrial Diversion is a program run by the State Attorney’s Office and is usually reserved for first time, nonviolent offenders. The program is similar to probation, in that once you are accepted, you must report monthly to a supervising officer, undergo random drug testing, complete community service hours, and refrain from criminal activity. Drug possession charges are dropped upon successful completion of Pretrial Diversion.
2. You can request a Pretrial Intervention.
A Pretrial Intervention is managed by the Court. This process is more tolerant in that you do not have to have a spotless record in order to qualify. The program is similar to probation. For example, you must report to the Court on a regular basis, submit to a drug addiction assessment/evaluation, participate in drug treatment, comply with any specific requirements ordered by the Court, and refrain criminal activity. Drug possession charges are dropped upon successful completion of Pretrial Intervention.
3. You can request to be seen in Drug Court.
The Florida State Drug Court is a diversionary program created to address the issue of repeat drug offenders. The program provides for the identification, evaluation, case management and placement of substance abusing offenders in order to avoid entering the formal criminal justice system. During each case, the Drug Court Judge reviews progress reports on each participant. Incidents of noncompliance are reported immediately to the Drug Court Judge, along with recommendations as to consequences to be imposed. Upon successful completion of Drug Court, charges will be dropped.
4. You can request a “Motion to Suppress.”
This legal procedure is a request to have evidence excluded because it was illegally obtained. A Motion to Suppress can resolve the case and result in your case’s dismissal. How? Drug arrests are usually based on police hunches, prolonged (and thus illegal) encounters, and unreliable information. Each case should be reviewed individually so that an attorney can thoroughly analyze the particular facts to determine if a Motion to Suppress would resolve the case, or not.
5. You can directly submit a Plea.
Many people want to avoid drug treatment or moved forward with as little supervision as possible. For these people, it can be best to negotiate minimal probation without drug treatment or testing. However, random drug testing usually comes as a standard condition of probation.
6. You can go to Trial.
Not all people arrested for drug offense are guilty and many times a trial to determine one’s guilt or innocence is the best method to resolve the case.
When to Contact a Lawyer
So, what can you expect when you seek legal help?
Most law offices offer free initial legal consultations. An experienced lawyer can not only deal with the criminal charges, but also handle the sealing of your records. Among several key factors, the lawyer should investigate and consider whether your rights have been violated and whether the elements of drug possession have been met.
What if you can’t afford a private attorney?
If you cannot afford a lawyer and qualify for a public defender, you should not turn that down. Basically, you get a free lawyer to provide you with a legal advice. Also, there is a virtual legal advice clinic hosted by the American Bar Association. Qualifying users post their civil legal questions and volunteer attorneys respond via email.
You can ask your legal question through Free Legal Answers on the following link: https://florida.freelegalanswers.org/
How to Find a Lawyer in Florida
1. Check the Lawyer’s State Bar Profile. Every lawyer who is licensed to practice law must be listed in the Bar Association’s Directory of your state, The Florida Bar. Search the directory and make sure that s/he is currently licensed to practice law.
2. Google the Lawyer. It may take some time until you find something useful, but the search engines should reveal publications, news stories or websites related to your lawyer.
3. Search Yelp. You can also get information on your prospective lawyer by checking her/his Yelp profile. However, Yelp reviews are unverifiable, so do not interpret them literally.
4. Visit the Lawyer’s Website. This is the place where you can learn whether your prospective lawyer offers free legal consultations. You can also find testimonials, publications, and other information. Check out if s/he has a professional design and is user friendly. These are good signs.
5. Seek out other Third-Party Rating Groups. These are like business directories that rate professionals. One example of this is Super Lawyers, a rating service.
Your Questions
Still have more questions?
In case you have additional questions/comments, feel free to post them in the comments section below. If we do not know the answer to your particular question, we will gladly refer you to someone who can help.
Reference Sources:
2011 Florida Statutes, Chapter 893, Drug Abuse Prevention and Control:
2018 Florida Statutes, Chapter 893, Section 13, Prohibited Acts; Penalties:
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