Felony and Misdemeanor Drug Offenses

Under Florida law, it is a felony to possess certain drugs (controlled substances). In order to convict you the government must prove that you “possessed” a controlled substance. See § 813.13, Florida Statutes. 

For a full list of the substances that are illegal to possess click here. 

“Possession” and “Control” under Florida law

To prove “possession” the government must prove beyond a reasonable doubt that you 1) knew of the existence of the substance; and 2) intentionally exercised control over that substance.

Knowledge of the substance must be proven. The government must prove that you knew you possessed the physical substance and you knew what the substance is. 

What does “control” mean exactly?

Florida law says that “control” can be exercised over a substance whether the substance is carried on a person, near a person, or in a completely separate location. Mere proximity to a substance does not establish that the person intentionally exercised control over the substance in the absence of additional evidence. Control can be established by proof that you had direct personal power to control the substance or the present ability to direct its control by another. 

Example

An example of a case where evidence of “control” is lacking would be the following. Imagine you borrowed a friend’s car for the afternoon. On your way home you are pulled over. The police ask if they can search your car and you agree to the search because you know that you weren’t carrying anything illegal in the car. Unfortunately, your friend left a small locked suitcase in your trunk. A drug K9 is on scene and signals that there are drugs in the suitcase. Since you do not have the key to the suitcase’s lock the police break it open. Inside the police find a kilogram of cocaine.  In this hypothetical, evidence of “control” is lacking because 1) the car isnt yours, 2) your possession of your friend’s car was very limited and temporary, 2) the suitcase was locked and you had no access, 3) the suitcase was in the trunk and you were driving when police observed you.

Defense to felony and misdemeanor drug offenses in Florida

Although drug possession cases might seem simple to prove, there are a number of defenses that can be raised to combat this charge. 

Constitutional Defenses

Drug possession cases always implicate the accused’s constitutional rights, specifically the fourth amendment right to be free from unreasonable searches and seizures, and fifth amendment rights regarding self incrimination

It is extremely important to thoroughly analyze the case against you to determine if law enforcement violated your fourth or fifth amendment rights. If it is discovered that in fact, they did violate your rights then there is a chance that you can have key evidence thrown out. This might make it impossible for the government to convict you. 

You did not  “control” or possess” the illegal substance.

The government must prove that you “controlled” or “possessed” the drugs. For example, if you were driving someone else’s car or the drugs were found in a friend’s bag that you happened to be sitting next to, then you have a strong defense against the charge. 

You didn’t know.

The government must prove that you had knowledge that the substance was illegal. If the government can’t prove you knew about the drugs or there is evidence that supports your lack of knowledge, then that might be enough to successfully defeat the charge.

Criminal Defense Attorney

At The Law Offices of Scott J. Kalish we have the experience defend you in your felony or misdemeanor drug offense. We represent people throughout South Florida, specifically Broward, Palm Beach, Miami-Dade, Martin, and St. Lucie Counties.

With our main office conveniently located in Coral Springs, and other office locations throughout South Florida we are never far. If you have a question about your drug offense, or any other matter, reach out to us today for help.