Facing a drug charge can be daunting. Being convicted of a drug charge is life-changing. In Florida, possession with intent to distribute is a serious crime that is subject to heavy penalties. Not only do you face prison time and fines, but as a convicted felon, you lose your right to vote and own a firearm. You may also find difficulties in other aspects of life, such as obtaining a mortgage and securing employment.
If you have been arrested for possession with intent to distribute, you need our team of skilled defense lawyers at Moses and Rooth, Attorneys at Law, to build a strong case for you. As former prosecutors, we can anticipate the state’s case and create a solid strategy to defend you. For experienced criminal defense legal assistance following Florida drug charges, contact Moses and Rooth.
Possession with Intent to Distribute
Under Florida law, it is a crime to possess a controlled substance with the intent to distribute. The severity of the drug charge, whether it be a felony or misdemeanor, depends on how Florida’s drug schedule classifies the substance.
Controlled Substance Schedules
Controlled substances are categorized into schedules based on their potential for abuse (i.e. physical or psychological dependence) and accepted medical use. The schedules organize them by level of severity from Schedule I substances, having the highest potential for abuse and no currently accepted medical purpose, to Schedule V substances, being the least addictive and commonly used for medical treatment. Here are some examples:
- Schedule I includes heroin, GHB, ecstasy or Molly, and LSD;
- Schedule II includes methamphetamine, oxycodone (OxyContin), hydrocodone (Vicodin), Adderall, and cocaine;
- Schedule III includes anabolic steroids, suboxone, and Vicodin;
- Schedule IV includes Xanax, Valium, Tramadol, and Ambien; and
- Schedule V includes Tylenol with codeine.
Possession with the intent to distribute a Schedule I substance is a third-degree felony, while the same drug charge involving a Schedule II substance is a second-degree felony. Drug sales of a Schedule V substance typically results in misdemeanor charges.
How to Prove a Possession with Intent to Distribute Charge
To be successful on charges of possession with intent to distribute, the prosecution must prove the following elements beyond a reasonable doubt:
- You had possession of the controlled substance with the intent to sell, manufacture, or deliver the substance;
- The substance is listed under Florida’s drug schedule; and
- You had knowledge of the illicit nature of the substance.
Your entire case will be dismissed if the prosecution fails to prove even one element of the crime.
Possession can be actual or constructive. You have actual possession over the substance if it is found on you or is somewhere that you can reach and you have control over that place. Constructive possession is where the substance is not physically on you, but it is in a place you have control over and you know or should know the substance is there.
Intent to sell
When determining if you have the intent to sell, the prosecution will look at a multitude of factors, such as the following:
- Admissions by you or your associates of the intent to sell the drugs;
- Quantity of the substance found;
- Packaging of the substance;
- Presence of sales paraphernalia, such as scales, baggies, and rolling papers;
- Large amounts of cash;
- Presence of weapons; and
- Records of sales or debts owed.
It is common for the prosecution to take a simple possession charge and elevate it to a possession with intent to distribute charge by pointing to any one of the factors listed above.
Drug charges in Florida are serious crimes that come with hefty jail time and fines.
For a first-degree felony possession with intent to distribute charge, you face up to 30 years in jail and a $10,000 fine. A second-degree felony charge also carries a $10,000 fine and up to 15 years in jail. For a third-degree felony charge, you could spend 5 years in jail and be fined $5,000. Misdemeanors carry possible jail time of 60 days to a year and a fine of $500-$1,000.
The level of a possession with intent to distribute charge depends on four factors:
- The type and amount of substance,
- The location of the substance’s distribution,
- Whether the distribution involved a minor, and
- The defendant’s criminal history.
These factors can also support elevating felony possession charges in Florida to possession with intent to distribute charges.
Type and Amount of Substance
The penalty for possessing a controlled substance is impacted by the type and amount of substance involved in the crime. When determining if your Florida drug charge is a felony or misdemeanor, we look at how it is categorized in the Florida drug schedule discussed above.
The quantity of drugs police found is equally important. Possessing even a small amount of a Schedule I substance (such as ecstasy) could result in a third-degree felony charge.
Location of the Distribution
The location of the alleged drug sale could elevate a charge. Florida law prohibits the possession and distribution of a controlled substance in, on, or within 1,000 feet of the following places:
- Childcare facilities;
- Public or private elementary, middle, or secondary schools between 6 AM and 12 AM;
- Public or private post-secondary educational institutions;
- State, county, or municipal parks, community centers, or public recreational facilities;
- Places of worship; and
- Public housing.
The penalty also varies based on the location of the drug distribution. For example, Florida imposes a minimum jail sentence of three years for selling heroin within 1,000 feet of a public elementary school, but that required jail time does not apply if the sale took place near a church.
Involving a Minor
If the defendant is over 18 and either sells drugs to a minor or uses a minor to facilitate a sale, the defendant will be charged with a felony. The degree varies based on the type of drug, but can result in a 15 to 30 year jail sentence and a $10,000 fine.
Florida imposes harsher penalties for repeat offenders.
A habitual felony offender is one who has received two or more felony convictions, either in Florida or any other state. If you are arrested for drug sales and convicted of third-degree possession with intent to distribute, you may serve up to 10 years in prison. For a second-degree felony, you may serve 30 years in jail, and for a first-degree felony, you could spend life in prison.
Habitual misdemeanor offenders are those who have received four or more misdemeanor convictions. If convicted of a misdemeanor possession with intent to distribute charge, you could face up to one year in prison, enrollment in a treatment program, or house arrest.
Even if police found drugs on or around you, we can build a strong case to defend you. The type of defense available to you depends on the facts of your case. Commonly used defenses include:
- Fourth Amendment violation of unlawful search and seizure rights;
- Violation of Miranda rights;
- Flawed crime lab analysis of an illegal substance;
- Entrapment; and
- Failure to prove all elements of the claim.
Taking an aggressive defense strategy may not be suitable in all cases. Based on your individual facts, it may be more advantageous to negotiate amending the charges from possession with intent to distribute to a simple possession charge. This could result in reduced or no jail time.
Contact Us Today
Florida has some of the toughest drug laws in the country. You need the toughest law firm to fight for you. If you have been arrested and charged in Florida for possession with intent to distribute, you need Moses and Rooth, Attorneys at Law, to defend your rights. As former prosecutors with over 36 years of combined legal trial experience, we know both sides of the criminal justice system. Let us be your advocate.