Drug Possession Attorneys Palm Beach and Broward County
Controlled substances are drugs or chemicals whose manufacture, possession or use is regulated by the government. Controlled substances include illegal drugs and certain prescription drugs, and are listed in one of five Schedules. Controlled substances are listed as either Schedule 1, 2, 3, 4 or 5. Possession of Schedule 1, 2, 3, or 4 controlled substance (except cannabis under 20 grams) is a 3rd degree felony, punishable by up to 5 years in state prison. Possession of a Schedule 5 controlled substance and possession of marijuana less than 20 grams is a 1st degree misdemeanor, punishable by up to 1 year in county jail.
Schedule 1 Substances: Schedule 1 substances have a high potential for abuse and no currently accepted medical use in the United States.
Common Schedule 1 Controlled Substances: Cannabis (Marijuana), LSD, Peyote, Psilocybin (Psychedelic Mushrooms), Heroin.
Schedule 2 Substances: Schedule 2 substances have a high potential for abuse and currently accepted, but severely restricted medical use in treatment in the United States, and abuse of the substance may lead to severe psychological or physical dependence.
Common Schedule 2 Controlled Substances: Opium, Codeine, Morphine, Hydrocodone, Amphetamine.
Schedule 3 Substances: Schedule 3 substances have a potential for abuse less than the substances contained in Schedules 1 and 2, and have a currently accepted medical use in treatment in the United States, and abuse of the substance may lead to moderate or low physical dependence or high psychological dependence or, in the case of anabolic steroids, may lead to physical damage.
Common Schedule 3 Controlled Substances: Anabolic steroids, Ketamine, Dronabinol (synthetic THC), Gamma-Hydroxybutyric Acid (GHB).
Schedule 4 Substances: Schedule 4 substances have a low potential for abuse relative to the substances in Schedule 3, and have a currently accepted medical use in treatment in the United States, and abuse of the substances may lead to limited physical or psychological dependence relative to the substances in Schedule 3.
Common Schedule 4 Controlled Substances: Clonazepam, Diazepam, Alprazolam, Lorazepam, Ambien
Schedule 5 Substances: Schedule 5 substances, compounds, mixtures or preparations have a low potential for abuse relative to the substances in Schedule 4 and have a currently accepted medical use in the United States, and abuse of such compound, mixture or preparation may lead to limited physical or psychological dependence relative to the substance in Schedule 4.
Common Schedule 5 Controlled Substances: Not more than 200 milligrams of codeine per 100 milliliters or per 100 grams, not more than 100 milligrams of opium per 100 milliliters or per 100 grams.
Definition of Possession
To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. In drug cases, a person may be in either actual or constructive possession of the controlled substance.
Actual possession means that the controlled substance is:
- Either in the hand of or on the person, or
- Either in a container in the hand of or on the person, or
- Within ready reach to the person and is under his or her control.
Constructive Possession means the controlled substance is in a place over which the person has control, or in which the person has concealed it. To prove the person was in constructive possession of a controlled substance, the state must show (1) that the defendant knew of the presence of the controlled substance and (2) that the defendant had the ability to maintain dominion and control over the controlled substance. Additionally, if the controlled substance is in a location occupied by multiple people (joint possession), such as a car, the state cannot solely rely on a person’s proximity to substance to prove constructive possession. The state would need additional evidence, such as an incriminating statement or fingerprint evidence to establish knowledge, dominion and control.
The State did not prove joint constructive possession in the following situation:
A vehicle was pulled over for a window tint violation. The vehicle contained multiple occupants. The officer approached the vehicle and observed the defendant, “rummaging in the vicinity of the floor in the front seat.” The officer then searched the vehicle, and found a container containing, ecgonine, a cocaine derivative, located where the defendant was sitting. The officer asked the defendant to identify the container, and the defendant told the officer to, “Drink the container to find out.” The court stated, “although the defendant’s location in the front passenger seat shows he was near the container, it does not follow from his mere proximity that he knew of the contents, that he placed it there, or that he could exercise dominion and control over it.” One of the other occupants could have placed the ecgonine in the container, and the officer did not see the defendant actually manipulate the container.
The State proved exclusive constructive possession in the following situation:
A police officer found a single marijuana cigarette located in the defendant’s vehicle. The defendant was the only person in the vehicle. The court stated that, “sole possession and control of the vehicle, alone, is prima facie evidence that the defendant maintained exclusive possession over the vehicle. Therefore, the defendant’s knowledge and ability to control the marijuana may be inferred by the jury.” Although sole possession of a vehicle creates an inference of both knowledge and control, the defendant can offer evidence to rebut the inference (The defendant can assert that he or she did not own the car, or that someone else was driving the vehicle prior to the defendant’s arrest). The jury is then free to accept or reject the defendant’s argument.
What Does the State Need To Prove?
To prove that a Defendant possessed a Controlled Substance, the State must prove three elements beyond a reasonable doubt.
- The Defendant possessed a certain controlled substance.
- The controlled substance was the specific controlled substance alleged.
- The Defendant had knowledge of the presence of the controlled substance.
Unfortunately, the State does not have to prove beyond a reasonable doubt that the Defendant knew of the illegal or illicit nature of the substance. Instead, it is the Defendant’s burden to show that he or she did not know of the illegal or illicit nature of the substance. For example, what if a friend gave you a bag of what you thought was sugar, but it turned out to be cocaine. You are pulled over by a police officer who sees the bag on the passenger seat. The officer tests the bag which tests positive for cocaine, and you are subsequently arrested. The burden would be on you to show you didn’t know the substance was cocaine. Additionally, the jury is allowed to presume that the defendant knew of the illicit nature of the controlled substance if the jury finds that the defendant was in actual or constructive possession of the controlled substance.
Penalties for Possession of a Controlled Substance
Florida law states that possession of a controlled substance is a third degree felony, except for possession of marijuana less than 20 grams and possession of schedule 5 substances. Third degree felonies are punishable by up to five years of probation, five years in prison as a condition of probation, and a $5,000 fine.
A conviction for possession of a controlled substance also results in a mandatory one year suspension of the defendant’s driving privileges.
Fourth Amendment Violations – The police often find controlled substances by violating a person’s Fourth Amendment rights. The Fourth Amendment to the United States Constitution protects individuals from the government engaging in unreasonable searches and seizures. A Fourth Amendment violation may result in suppression of the drugs. This means that the State cannot use the evidence of the drugs gathered by the police officer, typically resulting in a dismissal of the drug charge.
Common Fourth Amendment violations occur in the following scenarios:
- The police did not have probable cause to believe that a traffic infraction occurred.
- The police did not have reasonable suspicion to believe that a crime occurred, was happening or was about to occur.
- The police prolonged the traffic stop to “stall” for a K-9 to arrive at the scene of the traffic stop to sniff around the vehicle.
- The police searched a defendant when he or she did not voluntarily consent to a search.
- The police searched the defendant’s vehicle without his or her consent.
- The police searched a defendant’s belongings without his or her consent when the defendant was a passenger in a vehicle.
- The police conducted an illegal pat down search of the defendant.
- Miranda rights violation resulting in suppression of statements.
- Invalid or no search warrant.
It is a defense to the charge of possession of a controlled substance for a person to possess a controlled substance which he or she lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice.
It is a defense to the charge of possession of a controlled substance if the person in possession of the controlled substance is an agent for a person with a valid prescription. A pharmacist may dispense medication to a person’s “agent.” For example, this prescription defense is available to a person holding a family member’s medication at the request of the family member. Additionally, express authority to hold the controlled substance is not required to assert this defense. The agency relationship may be implied from the circumstances.
Inability to Prove Constructive Possession
Additionally, the State often has a difficult time proving that a defendant was in constructive possession of a controlled substance, typically in joint constructive possession situations (ex. marijuana found in a vehicle occupied by more than one person).
The law regarding possession can be confusing. What facts do and do not constitute possession are determined by case law, and require the knowledge of a skilled criminal defense attorney. The lawyers at Bottari & Doyle will able to apply the facts of your case to the law to determine if the State will have a hard time proving their case.
If the State’s case is factually weak, a prosecutor may completely dismiss the charge, reduce a felony charge to a misdemeanor, or reduce a misdemeanor charge to a misdemeanor possession of drug paraphernalia charge. A reduction to possession of drug paraphernalia is significant, because a conviction for possession of drug paraphernalia does not have the effect of suspending driving privileges.
If you have been arrested or charged with Possession of a Controlled Substance in Palm Beach County, Broward County, Martin County or Dade County, contact a Palm Beach criminal defense attorney from Bottari & Doyle at (561)-588-2781 for a free consultation.