Possession of Heroin in Florida
Palm Beach, FL Possession of Heroin Attorneys’ Bottari & Doyle can help you with your Posession of Heroin Charge in Palm Beach County. Call 561-588-2781.
To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. In heroin cases, a person may be in either actual or constructive possession of the heroin.
Actual possession means that the heroin 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 heroin 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 heroin, the state must show (1) that the defendant knew of the presence of the heroin and (2) that the defendant had the ability to maintain dominion and control over the heroin. Additionally, if the heroin 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 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 heroin 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 heroin, the State must prove three elements beyond a reasonable doubt.
- The Defendant possessed a certain substance.
- The substance was the specific heroin alleged.
- The Defendant had knowledge of the presence of the heroin.
Penalties for Possession of Heroin
Florida law states that possession of heroin is a third degree felony. Third degree felonies are punishable by up to any combination of the following:
- 5 years in prison
- 5 years of probation
- $5,000 fine
Additionally, a conviction for possession of heroin also results in a mandatory one year suspension of the defendant’s driving privileges.
Possession of Heroin Defenses
Fourth Amendment Violations
The police often find heroin 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.
- Invalid or no search warrant.
Inability to Prove Constructive Possession
Additionally, the State often has a difficult time proving that a defendant was in constructive possession of a heroin, typically in joint constructive possession situations (ex. heroin 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 criminal 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.
Lack of Knowledge
It is an affirmative defense to the charge of possession of heroin if the defendant can prove that he or she did not know the substance was heroin.
If you have been arrested or charged with Possession of a Heroin, in Palm Beach County, Martin County, Broward County or Dade County, contact a
Palm Beach criminal defense attorney from Bottari & Doyle at (561)-588-2781 for a free consultation.