Next to DUI, the largest segment of our cases deals with “controlled substances.” To most of us that just means “drugs.” Except for possession of under 20 grams of cannabis and possession of drug paraphernalia, all “drug cases” are felonies. They range from the least serious which are third degree felonies. This may be the least serious but it is punishable by up to five years in prison. Second degree felonies are punishable by up to 15 years in prison. Drug trafficking (possession of more than the amount provided for in the statute) is a first-degree felony punishable by up to 30 years in prison. Trafficking charges also call of minimum mandatory sentences of from 3 years to life imprisonment depending on the quantity and whether anyone died because of the use of the drugs. You can even be charged with a serious felony for trying to arrange for a drug transaction even if you never touch any drugs. This is charged as conspiracy to possess, sell or traffic in drugs.
Of course, for the State to be able to successfully prosecute for these charges, they must be able to use the evidence seized by the police. Often the police act in ways that are not permitted and the penalty for that is the loss of the use of the evidence. This is known as the Exclusionary Rule. If the Court rules that you were stopped or searched illegally, then all of the evidence, including the drugs that are found, will be excluded from the trial. Your entire case could be won or lost depending on whether a viable motion to suppress the drug evidence is filed and litigated in your case. Additionally, a motion to dismiss can be filed in your case if the prosecution does not have sufficient evidence to prove that you actually or constructively possessed the controlled substance. Other defenses exist in drug cases including a prescription defense, a legal disposal defense, and a drug overdose immunity statute. Some of these are discussed briefly below.
Attorney for Drug Crimes in Central Florida
Once arrested for a drug offense, your next critical step is to speak with an attorney experienced in fighting drug crimes in Central Florida.
If you have been arrested for a drug crime in any of the counties listed on this site, then immediately contact an experienced attorney at The Defense Group. By focusing on criminal defense and serious drug crimes, we pay particular attention to recent changes in the law and unique arguments that apply to these types of cases. Our attorneys attend regular seminars throughout the State and regularly read the new case reviews as the new cases are published.
Drug Crimes in Central Florida
In many counties, many of the lower-level drug cases meet the criteria for Drug Court and are referred and assigned to that Court. You also have the option of removing your case from drug court so that it can be resolved in a regular trial division. Understand that while Drug Court may be a bit onerous and require months of supervised participation, the goal is to complete the program after which the charges will be dismissed. If you elect to opt out of Drug Court, then you roll the dice. Unless you have a clear winner in a motion to suppress or a motion to dismiss, the choice to opt out and go to trial should be weighed very carefully. Your experienced attorney will explain the options and the odds. The decision is yours.
Types of Drug Crimes in Florida
We represent individuals charged with a wide variety of drug charges, including:
- Marijuana Crimes
- Trafficking Cannabis
- Cultivation of Marijuana
- Marijuana Grow House Operations
- Possession of Drug Paraphernalia
- Possession with Intent to Sale or Distribute
- Sale or Delivery of drugs
- Drug Trfficking
- Possession or Trafficking in Prescription Drugs
- Driving While Impaired by Drugs (DUI)
- Manufacturing Methamphetamine or Meth Lab Operations
- Possession of a “New Drug” with Itext-mainWhiteell
- Conspiracy to Manufacture or sell drugs
- Transporting Drugs
- Trafficking in Cocaine
Types of Controlled Substances under Florida Law
Florida’s controlled substances (drug) statute is found primarily in Chapter 893 of the statutes. There are literally hundreds of drugs listed there and many have names that are unpronounceable. They are divided into “Schedules” based on their perceived danger and if they are determined to have any legitimate medical value. Among the more common drugs listed in Chapter 893 are:
Marijuana / Cannabis / Pot / Weed
Possession of Drug Paraphernalia
Street Drugs, including:
Methamphetamine / Meth / Crystal Meth
Lysergic Acid Diethylamide (LSD)
MDMA / XTC (Ecstasy)
Prescription Drug Abuse (which can sometimes be charged as “drug trafficking” even through only one bottle of prescription medication is involved), including:
OxyContin / Oxycodone
Demerol / Meperidine
Vicodin / Hydrocodone
Valium / Diazepam
Xanax / Alprazolam
Ritalin / Adderall / Methylphenidate / Amphetamine
Credibility of Confidential Informants (CI) and Undercover Officers
Many cases are manufactured by the police through the use of “confidential informants.” They are sometimes referred to as “Reliable Confidential Informants.” Drug cases often revolve around the credibility of confidential informants who are working with undercover detectives to set up other individuals to commit drug crimes. Confidential informants are used routinely for sale and delivery of cocaine, heroin and methamphetamine cases, and for serious drug trafficking cases throughout Central Florida.
Often, confidential informants are desperate to set up another individual to lessen their punishment for their own criminal misconduct. They have been arrested and promised special treatment if only they can ensnare some other individuals for the police to catch. Conducting an exhaustive investigation to exploit this desperation is an important part of winning a drug case.
The confidential informant, often an individual that already has a long criminal history or pending charges, has an incredible motive to lie, plant evidence, and make false accusations. They are inherently unreliable. In certain cases, the confidential informant (CI) will set up other individuals in exchange for cash payments from law enforcement. These financial incentives can also call the confidential informant’s credibility into question.
The detectives, special agents, or law enforcement officers working with the confidential informants, sometime play too loose with the law in their efforts to obtain drug convictions. Where we can uncover that, we have been successful in having entire cases dismissed.
An experienced criminal defense attorney, in a practice like ours that emphasizes defense of drug cases, can often find and exploit reasonable doubts that may exist in your case because of credibility issues with the confidential informant, detectives, agents or undercover officers. Where your 4th or 5th Amendment rights are violated, we can file a motion seeking to exclude important evidence.
Motions to Suppress in Florida Narcotic Cases
Most Motions To Dismiss are brought pursuant to the Fourth Amendment to the US Constitution. The Fourth Amendment protects all individuals against unreasonable searches and seizures.
This bedrock Constitutional principle is both short and sweet. It says:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Fifty-four words! The courts have ruled that to keep the police straight, that there needs to be an Exclusionary Rule that punishes the police when the violate this Amendment. When an experienced attorney believes that the police conduct has violated this provision, we file a Motion to Suppress, asking the court to throw out the evidence that the cops gathered by violating your rights. It will make no difference how much drugs they found you with. If they did that illegally, the charges will be dismissed.
Without constitutional requirements that protect the rights of citizens, the freedoms that all law-abiding citizens enjoy would be jeopardized. Hiring an experienced Drug Crimes Defense Attorney to contest the legality of each step taken by the police is critical to your defense.
Whether the case involves a search and seizure of your vehicle, your person, or your home or business, we will do the legal research on the latest cases that apply to your facts. If the police have exceeded their authority or violated your Constitutional rights, we will file and ague the motions that seek to have your charged dismissed. Even if the police obtained a search warrant and the evidence was seized during the execution of that court-ordered warrant, there may be grounds to attack and have the evidence suppressed.
Elements of the Offense – Proving Possession
The word “possession” is a legal word of art, the meaning of which may have little to do with how you use the word every day. Possession of a drug does not require ownership. Possession of a drug is not necessarily exclusive to only one person (in other words, two people can “possess” the same item at the same time). Essentially, possession means the immediate capacity to exercise control over something. Possession can be actual or “constructive.”
“Actual possession” means to be in direct physical contract with the substance, such as holding drug paraphernalia in your hand, having cocaine in your pocket, or carrying marijuana in a purse on your shoulder.
“Constructive possession” means that you are not actually in physical contact with the substance, and must be proven by showing that the defendant:
- Knew of the presence of the drugs;
- Knew of the illicit nature of the drugs; and
- Had dominion or control over the drugs.
Knowledge of the presence of the drug can be inferred from circumstantial evidence, including possession or ownership of the premises or vehicle where the item was found. However, if more than one person jointly occupies the premises or vehicle where the drugs are found, then the knowledge of the accused will not be inferred from his possession of the premises or vehicle, but rather must be established by independent proof.
Independent proof can include:
- Statements of the defendant that he knew about the presence of the drugs; or
- The fact that the drugs were in plain view.
Common Factual Situations – Drugs Found in a Vehicle
There are two or more people in a vehicle– a driver and one or more passengers. The vehicle is stopped for some minor traffic infraction. Under prior law we could argue that the stop was “pretextual” (they used a very minor traffic offense as a pretext to stop and investigate for drugs). Now, if the officer can convince the court that a violation, no matter how minor (doing 56 in a 55 zone is good enough), then the stop is “good” and this pretext works for them. The officer claims that he smells the odor of cannabis, and under the Court’s “plain smell doctrine” the officer decides to search the vehicle. The officer asks the occupants to exit the vehicle and conducts a search. On the floor board, under the back-passenger seat, the office locates a baggy of drugs hidden in a brown paper bag (not in plain view).
The driver and passenger either refuse to answer any questions or deny knowing that the drugs were in the vehicle. Under this scenario, if the driver or passengers were arrested for possession of the controlled substance, either would probably win a motion to dismiss. The cute little saying is “Nobody talks—everybody walks”
Under these facts, there is insufficient evidence to determine who possessed the controlled substance since it was found in a jointly occupied vehicle, it was not in plain view, and there were no statements by either party admitting to knowledge of the contraband. Of course, each case is different. The police may have access to text messages or emails that implicate someone with the drugs. There may be a confidential informant that just got out of the car and can testify that one or more occupants was aware of the drugs. The bottom line is that the State will have to prove beyond a reasonable doubt that the person charged meets the three criteria for constructive possession. Failing that, the State’s case fails.
A Motion to Dismiss is a written document that is sworn to by the defendant that recites the facts of the case as alleged by the police (assuming those facts are true) and shows that although the facts of the case are not in dispute, those facts do not prove a “prima facie” case of guilt. Lawyers call this a “C-4 Motion” (after the rule that it is filed under.)
Of course, most police officers understand that insufficient evidence exists under this scenario (multiple occupants of a vehicle or structure.) The police are trained to gather additional evidence in this type of situation.
First, the police will try and get one or both of the parties to make a statement admitting that they knew the drugs were in the car. The police do this in many ways. First, the police may threaten to arrest the other occupant of the vehicle unless someone gives a confession. Many a man has fallen on his sword under the threat that the police will arrest the wife or girlfriend unless he fesses up.
Secondly, the police may promise to “go easier” on everyone if someone admits knowledge or ownership of the drugs. Third, the police may accuse the driver of more serious offenses such as selling drugs, to get the driver to say, “No, that is for personal use. I’m not a drug dealer.” Once the driver is tricked into talking about the case, the driver has just admitted knowledge and ownership of the drugs.
So, although it is stated elsewhere on our site, her is the best legal advice you can have when dealing with the police. SHUT UP!! Be polite and totally uncooperative. The police will not ask a question unless it is their fond hope that the answer to that question will help them put somebody in jail don’t help them.
What to do during a traffic stop
The best thing to do when your vehicle is stopped by the police is to be as polite as possible. Have your driver’s License and registration (and maybe your insurance card) ready to present on demand. While you want to be polite, you do not want to help the police find a reason to arrest you. If you determine that the police are interested in more than just issuing you a citation, keep the following in mind:
- Never, ever talk with the cops! They are not your friends. They are not going to invite you to the policeman’s Bar B Q. You are not going to become bff’s. His goal is to find a reason to put you in jail. He doesn’t hate you any more than you hate the fish when you are fishing. It’s just what they do. You do not have to be advised of “your rights” to be able to exercise them. The right to remain silent is an important one. Use it.
- Do not exit the vehicle until asked to do so. Once you are asked to exit the vehicle, the officers are interested in more than just issuing a civil traffic ticket.
- Politely decline to make any statement, answer any question, or consent to any search of your person or property or perform any test or exercise of your sobriety.
- To repeat in part, never submit to Field Sobriety Exercises. They are a trap. Nobody performs them perfectly. They are used as a justification for an arrest the cop planned to make anyhow.
- Tell the officer politely that you are invoking your rights. The only thing that you need to say to invoke your rights is “I never talk to the police without my lawyer. Am I free to leave?”
- Your rights include the following:
- the right to remain silent;
- the right to have an attorney present before and during any questioning;
- the right to refuse to consent to any search of your person, belongings, vehicle, or residence; and
- the right to refuse to consent to take any sobriety exercises, the “HGN” eye test, handheld breath test, or other breath or chemical test.
Do not get pulled into any conversation with the officer, no matter ow innocent it sounds. The officer is trained to put you ate ease and then extract information he can use to develop probable cause to arrest you. Just shut up! Simply continue to invoke your right to remain silent. If the officer continues to question you, know that the officer is violating your right to remain silent. No matter what the officer says, continue to remain silent.
If you spontaneously start talking, even after invoking your rights, that information can be used against you. Of course, your refusal to answer all the officer’s questions may mean that the officer will arrest you. However, if the officer has grounds to arrest you, then it is unlikely that anything you say will change the officer’s mind.
Usually, if the officer continues the trying to question you, it is because the officer does not have enough evidence to make an arrest without your confession or admissions. By continuing to remain silent, you are depriving the officer of that additional evidence needed to make the arrest. Do not physically resist the officer in any manner, because doing so will result in an additional charge. Be as polite and respectful as possible. Just don’t be helpful.
If you are not under arrest or detention, you are free to end the contact with the officer and leave. For instance, once you receive a traffic citation, you should be free to end the contact with the police.
Politely ask the officer if you are free to go. If the officer does not have “probable cause” to continue to detain you, then the officer will let you go. If the officer continues to detain you after you ask to leave, you may have grounds to suppress any evidence gathered after that.
The only information you should give the officer is your driver’s license, proof of insurance, and vehicle registration. Make sure that information is easily accessible so you can hand it to the officer if it is requested. You are not required to explain it. You for example are not required to confirm that the address is still correct. If it is not you may get an additional citation.
Drug Overdose Immunity under Section 893.21(2)
An effort to seek help in an overdose situation may give rise to a defense under Section 893.21, Florida Statutes, which provides:
“F.S. 893.21 Drug-related overdoses; medical assistance; immunity from prosecution.—
(1) A person acting in good faith who seeks medical assistance for an individual experiencing a drug-related overdose may not be charged, prosecuted, or penalized pursuant to this chapter for possession of a controlled substance if the evidence for possession of a controlled substance was obtained as a result of the person’s seeking medical assistance.
(2) A person who experiences a drug-related overdose and is in need of medical assistance may not be charged, prosecuted, or penalized pursuant to this chapter for possession of a controlled substance if the evidence for possession of a controlled substance was obtained as a result of the overdose and the need for medical assistance.
(3) Protection in this section from prosecution for possession offenses under this chapter may not be grounds for suppression of evidence in other criminal prosecutions.”
The immunity provisions of the drug overdose statute only apply when the defendant was experiencing a drug overdose and needed medical assistance. The statute gives immunity to the person suffering from the overdose and the person who seeks medical assistance on their behalf.
Prescription Defenses to Florida Drug Crimes
Under Florida law, it is unlawful for any person to be in actual or constructive possession of a controlled substance unless the substance was “lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner….” Thus, having a valid prescription is a defense to possession of a controlled substance. See §§ 499.03(1), 893.13(6)(a), Fla. Stat. (2012); O’Hara v. State, 964 So.2d 839, 840–41 (Fla. 2d DCA 2007).
Notwithstanding this defense, the statute also requires that you keep your controlled substances in the containers from the drug store that contain the name of the Dr. issuing the prescription, the exact medication prescribed, the quantity and the date. Being able to produce a prescription later (that was issued prior to your arrest) may result in charges being dropped, but you are likely to go to jail, be charged, pay a bondsman and hire an attorney for keeping the legal drugs in an illegal fashion.
Read more about the prescription drug defense.
Florida law also includes an affirmative defense if you took possession of the controlled substance only for the purpose of legally disposing of it or turning it over to law enforcement. Click here to read more about Florida’s drug defense for legal disposal.
Choosing an Attorney for Drug Crimes in Central Florida
If you have been arrested for any drug crime anywhere in Central Florida, contact an experienced criminal defense attorney with The Defense Group. We represent clients charged with Possession of Controlled Substances, trafficking in controlled substance under F.S. 893.13 and F.S. 893.135, and related charges for possession with intent to sell, dealing drugs, and trafficking in drugs.
Talk with us about important defenses that might apply to your case. Let us put our experience to work for you. Call 407 743 8430 or 407-250-9557 to speak with an experienced attorney for drug crimes anywhere in Central Florida