One of the most common types of criminal charges seen in courtrooms everyday across the country involve drug possession offenses. Depending on the type of substance involved and the particular amount of that substance that a person possesses, these charges can range from minor second-degree misdemeanors all the way up to first-degree felonies punishable by up to thirty years in prison. Below are some of the basic principles and frequent issues that are common in drug possession or narcotics offenses.


Drug offenses can range from simple possession charges to the most severe offenses involving trafficking in narcotics. If law enforcement develops what they believe to be probable cause that the drugs were not for personal use, they can also increase the charge to “possession with intent to sell or distribute.” Additionally, if law enforcement has evidence that a person has sold, manufactured or delivered a controlled substance, they can further increase the charge to “sale or distribution” of the specific controlled substance. Finally, under Florida law, if a person possesses beyond a certain amount of specific controlled substances such as cocaine, heroin, oxycodone or fentanyl, they can be arrested and charged with “trafficking”. Contrary to popular belief, a person does not have to be transferring or even selling narcotics to be charged with drug trafficking under Florida law. 


When people think of drug crimes, they almost always think that the charges must involve an “illicit” substance. Illicit is just another word for illegal, so substances like cocaine, heroin, and methamphetamine, which in and of themselves are illegal to possess and have no legitimate legal purpose. However, even prescription drugs or drugs that have a legitimate medical purpose can lead to criminal charges in certain situations. Many commonly known prescription drugs such as Oxycodone, Hydrocodone, Percocet, Xanax and Dilaudid are perfectly legal to possess, provided you have a lawful prescription for them by a licensed doctor. However, if a person is in possession of any of these same substances without a valid prescription, they can be charged with a felony under Florida law.

The same theory applies now in Florida to medicinal marijuana. Under current Florida law medicinal marijuana is legal for qualified patients in Florida. In order to qualify for medical marijuana a resident must have a qualified patient identification card, and also must be added to the medical marijuana use registry by a qualified physician. 


Generally speaking, there are two theories of proving possession under Florida law. The first and most common type of possession is what’s known as “actual possession”. Actual possession is just what it sounds like, when a person has actual possession of an illegal drug or contraband item. This occurs when items are found in a persons pocket, inside their waistband, or contained within their wallet or purse which is on them at the time. The second type of possession is what’s known as “constructive possession”. In order for a person to be in constructive possession of an item, the item must be located in a place in which that person has “dominion and control” over the item and that person must also have knowledge that the item is within his or her presence. The best example of a constructive possession scenario is a situation where a car which is occupied by multiple passengers is stopped by law enforcement and illegal drugs are found within the car. In this scenario, determining which, if any, of the passengers can be charged with constructively possessing the drugs can vary depending on the specific facts such as: (1) where exactly the drugs were located within the car; (2) where each passenger was seated in relation to where the drugs were found; (3) what statements or admissions were made by any of the passengers; and (4) what physical evidence, such as DNA or fingerprints may be found on the drugs.


While every case and the specific facts and circumstances of each case are always unique, there are several defenses that are often applicable to a variety of narcotic offenses. These defenses can include affirmative defenses such as entrapment, duress or necessity. There are also defenses and motions that can challenge illegal searches, search warrants or seizures conducted by law enforcement. The most common being a motion to suppress, which is essentially a motion asking the court to exclude or throw out any and all evidence obtained as a result of an illegal or unlawful search.

To ensure that you preserve all your rights and ability to successfully defending any drug possession charge the most important thing to remember is to not make any statements of any kind to law enforcement without first speaking with an experienced criminal defense attorney. This includes answering any questioning no matter how harmless the answers may seem, anything you say can be used against you later in criminal proceedings. 

Another crucial step in preserving potential defenses to drug possession charges involves never voluntarily allowing law enforcement to search your person or property without legal authority. Often times law enforcement officers will ask for permission or consent, usually just verbally but sometimes in a written form, to allow them to search a property or item without a warrant. A person should never volunteer or consent to these types of searches, as they are often an attempt to search a property or item that law enforcement officers know they are unable to get a warrant to search. A person’s refusal or denial of consent to a search is not an admission of or evidence of any wrongdoing, nor can it be used against them in court proceedings. This same theory applies to requests from law enforcement for voluntary DNA swabs, fingerprints, polygraph exams, and even voice or handwriting exemplars.


Yes. Although, the public perception and laws in other states have changed in recent years regarding marijuana, it is still illegal in Florida. Marijuana is still a punishable by jail and depending on how you are charged can be a felony. If you are charged with Possession of Marijuana the amount of marijuana you have makes the difference of whether you are charged with a felony or a misdemeanor. Possession of Marijuana Less than 20 Grams is a first degree misdemeanor. Possession of Marijuana More than 20 Grams is a third degree felony. If you are charged with Possession of Hash Oil, Possession of Hashish, or Possession of Cannabinoids are third degree felonies.  


There are certain requirements to be eligible for Drug Court. Even if you meet the statutory eligibility requirements, you still may not be offered Drug Court. An experienced drug lawyer will help you make the determination of whether Drug Court is right for you, and if it is the right choice for you, help get you accepted into the program. Read more about Drug Court.  

Contact us for a free strategy session regarding your drug case. The attorneys and staff at Keller, Melchiorre & Walsh have the experience, resources, and reputation to take on drug cases and achieve the justice you deserve. Click here to read what our clients say about us and click here to see our recent results.