Marijuana Attorneys Palm Beach and Broward County
Florida is not Washington or Colorado. In Florida, pursuant to Florida Statute 893.03(1), marijuana is a classified as a Schedule 1 substance. Schedule 1 substances have a high potential for abuse and no currently accepted medical use. Possession of marijuana less than 20 grams is a first degree misdemeanor, punishable by up to one year in jail and a one year driver’s license suspension. Possession of marijuana 20 grams or more is a third degree felony, punishable by up to five years in state prison and a one year driver’s license suspension.
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 marijuana cases, a person may be in either actual or constructive possession of the marijuana.
Actual possession means that the marijuana 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 marijuana 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 marijuana, the state must show (1) that the defendant knew of the presence of the marijuana and (2) that the defendant had the ability to maintain dominion and control over the marijuana.
The State will have difficulty proving constructive possession in the following situation:
- The defendant drove a vehicle containing multiple people. The police lawfully pull the vehicle over for speeding. One of the passengers throws a bag containing marijuana on the floor. The State will have difficulty proving that either the driver or the passenger constructively possessed the marijuana, absent any additional incriminating evidence.
What Does the State Need to Prove?
At trial, to prove that a Defendant possessed marijuana, the State must prove to a jury three elements beyond a reasonable doubt.
- The Defendant possessed a certain substance.
- The substance was marijuana.
- The Defendant had knowledge of the presence of the marijuana.
Penalties for Possession of Marijuana
Florida law states that possession of marijuana can be either a first degree misdemeanor or a third degree felony. Possession of marijuana is a first degree misdemeanor, punishable by up to one year of probation, one year in jail as a condition of probation, and a $1,000 fine if the weight of the marijuana is less than 20 grams. Possession of marijuana is a third degree felony, punishable by up to five years of probation, five years in prison as a condition of probation, and a $5,000 fine, if the weight of the marijuana is 20 grams or more.
A conviction for a misdemeanor and felony marijuana charge, pursuant to Florida Statute 322.055, results in a mandatory one year suspension of the defendant’s driving privileges. The defendant may obtain a hardship license if directed by the court, and may petition the DHSMV for the restoration full driving privileges after six months.
Defenses to Possession of Marijuana
Fourth Amendment Violations
The police often obtain marijuana in violation of 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 marijuana. This means that the State cannot use the evidence of marijuana gathered by the police officer, typically resulting in a dismissal of the 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.
- The police obtained a defendant’s statement as a product of a custodial interrogation.
- No search warrant or invalid search warrant.
Inability to Prove Constructive Possession
In addition to the police obtaining marijuana illegally, the State often has a difficult time proving beyond a reasonable doubt that a defendant constructively possessed marijuana. The law regarding constructive possession is very confusing. The attorneys at Bottari & Doyle will be able to apply the facts of your case to the law to determine if the State has a strong or weak case against you.
If the State’s case is factually weak, a prosecutor may completely dismiss the charge, reduce a felony marijuana charge to a misdemeanor, or reduce a misdemeanor marijuana 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 Marijuana 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.