If you or a loved one were recently arrested for possessing a small amount of drugs, call Moses & Rooth’s right away. Our drug possessions attorneys can help you fight your simple drug possession charge in Florida.
We’ll explain the law, the potential sentence, and how to beat a drug possession charge.
Never assume you have to plead guilty for simple possession in Florida. You can fight.
What Is Simple Possession?
In Florida, a drug possession charge means you had control over or access to drugs, but you didn’t manufacture, sell, or distribute them. Simple possession refers to a small amount of drugs for personal use.
Legally, you can possess drugs in two ways: actual or constructive possession.
Actual drug possession means the drugs were on your person, like in your pocket, bookbag, or purse.
Constructive drug possession means you had access to them, but they weren’t on your person. Instead, they’re usually in a vehicle or residence.
Everyday Situations That Lead to Simple Drug Possession Charges
Many people facing a simple possession charge never intended to break the law. Most get caught in routine situations that escalate quickly. Under Florida law, you don’t have to be using a drug or even holding it at the time of arrest to face charges. Just being near or having access to it can be enough.
Here are some everyday scenarios that can unexpectedly lead to criminal charges:
- Arguments at home. Police called to mediate a domestic dispute may spot drugs in plain view or conduct a search that uncovers paraphernalia.
- College dorm room inspections. Random checks by campus staff or law enforcement at Florida universities often result in possession charges for small amounts of marijuana or prescription pills.
- Being stopped for loitering or public disturbance. What starts as a minor citation can escalate if law enforcement discovers drugs during a frisk or bag check.
- Riding in someone else’s car. If police find drugs in a vehicle, every passenger is subject to questioning or charges unless someone admits ownership.
- Borrowing someone else’s belongings. Using a friend’s backpack, jacket, or storage bin that contains drugs or paraphernalia, even if you did not know what was inside.
- Attending a party. Noise complaints or other concerns result in police finding controlled substances nearby, and no one claims ownership.
- Car accidents or medical emergencies. If you’re unconscious or unable to explain yourself, responders might find controlled substances and report them to the police.
Even if you’re not the one using or owning the drugs, law enforcement may still pursue charges. These situations highlight how quickly a misunderstanding can turn into a criminal case. Being informed is the first step toward protecting yourself.
What to Expect from a Simple Drug Possession Charge
Drug possession is either a misdemeanor or a first, second, or third-degree felony.
Possession of up to 20 grams of marijuana, some Schedule V drugs, or drug paraphernalia is a first-degree misdemeanor. You face up to one year in jail and fines up to $1,000. Everything else is usually a felony.
For example, it’s a third-degree felony for possession of Schedule III and IV drugs.
More specifically, possession of fewer than:
- 28 grams of cocaine,
- 4 grams of heroin,
- 1 gram of LSD,
- 14 grams of meth, or
- 10 grams of MDMA are all third-degree felonies.
You face a sentence of up to 5 years in prison and fines up to $5,000.
Possession of more than 10 grams of a Schedule I drug, like heroin, is a first-degree felony. The sentence is up to 30 years in prison and fines up to $10,000.
Talk with a drug crime defense lawyer right away about the level of the charge and potential sentence. Florida sentencing laws are complicated. The penalties can add up quickly, and you face a host of collateral consequences in addition to jail time and fines.
You may have to deal with probation, a driver’s license suspension, loss of federal financial aid for school, difficulty getting a job, and more.
How Do I Beat a Simple Drug Possession Charge in Florida?
Your attorney can argue that the prosecution lacks sufficient evidence to prove all elements of constructive possession. If the state cannot demonstrate that you had both knowledge of and control over the substance, and that the substance was indeed a controlled substance, the charges may be dropped. By challenging the evidence of knowledge, control, and the nature of the substance, your attorney can effectively weaken the prosecution’s case.
Stay Silent
The first step in beating a simple possession charge is knowing your rights. After your arrest, you have the right to remain silent and to get a lawyer. The police should tell you this as they read you your Miranda Rights to you.
The only thing you should say to the police is, “I’m invoking my right to remain silent, and I want a lawyer.”
After that, don’t say anything else.
The police may try several different tactics to get you to talk and effectively waive your right to talk to your lawyer first. Don’t let them. You do not have to be rude. Just assert your right to remain silent until you speak with your lawyer.
Don’t answer any questions and never admit you possessed any drugs or knew about the drugs in a vehicle or home.
Hire a Lawyer
A defense attorney makes sure you understand the law and your rights. You’ll tell your lawyer the story of what happened. Where you were, what you were doing, and who you were with.
It’s important to be honest about everything. Your attorney must know what happened to build you the best defense possible.
Ways to Avoid a Drug Possession Conviction
Sometimes the best way to handle a drug charge is to pursue an alternative route and not fight in court.
Pretrial Intervention Programs
A pretrial intervention program isn’t a defense but it can be a good option to avoid a conviction. You may be eligible for a pretrial intervention program with a misdemeanor or third-degree felony charge.
Once you complete certain requirements during probation, the court dismisses the charge. You usually need no or a limited criminal history to be eligible.
Pretrial Diversion Programs
Florida offers a three-tiered drug diversion program.
Level One: Applies to defendants charged with possession of a misdemeanor amount of marijuana or possession of drug paraphernalia.
Level Two: Applies to defendants with no criminal history or minor criminal history charged with:
- Simple possession of illegal narcotics (heroin, cocaine, felony cannabis, and fentanyl, and others);
- Possession of marijuana with intent to sell;
- Purchase of illegal narcotics;
- Obtaining or attempting to obtain illegal narcotics by fraud; and
- Possession of a controlled substance without a prescription.
Level Three: Can be offered to defendants charged with most misdemeanors, misdemeanor DUI, third-degree felony charges, and some second-degree felony charges.
How to Beat a Simple Possession Charge in Court
There are several defenses your attorney can use to demand a dismissal, win an acquittal at trial, or pursue a lenient sentence, including:
- No drugs. Officers often arrest people based on suspicion of possession of a drug, but it turns out the substance wasn’t anything illegal. There are also times when the officer claims you possessed drugs, but there are no controlled substances in evidence.
- Lack of possession. You may be able to show that you were unaware of the drugs and didn’t have actual or constructive possession of them. It might be that the prosecutor has no way to prove the drugs belonged to you if they were found in someone else’s bag, a car that other people use or occupied, or a shared apartment.
- Lack of knowledge. You may not have known that an item in your possession contained drugs. For example, if a friend left their gym bag at your home, which was later discovered to contain drugs.
- Medical marijuana use. You may be able to prove you have a prescription for marijuana use.
- Valid prescription. Providing proof of a legitimate prescription for the substance.
- Illegal search and seizure. The Fourth Amendment of the U.S. Constitution protects you from unreasonable searches and seizures. If the officers violated your rights by performing a search without probable cause, a warrant, or your consent, then the evidence they found isn’t admissible in court.
- Chain of custody arguments. If evidence wasn’t handled, tested, or documented properly from seizure to courtroom, it may be suppressed.
- Entrapment.: This occurs when an officer induces or coerces you into committing a crime that you had no prior inclination or disposition to commit. You have to show that you wouldn’t have committed the crime if it weren’t for the officer’s actions.
To successfully challenge a simple possession charge in court, you must expose the gaps in the prosecution’s case. If there is insufficient evidence, a constitutional violation, or a misinterpretation of your actions, a skilled defense attorney can use strategies like questioning witnesses, challenging evidence, and filing motions to challenge the charge.
The sooner you speak with a lawyer, the more time and options you’ll have to build a strong defense.
When Does a Simple Possession Charge Escalate?
In Florida, a simple possession charge usually refers to small amounts of a controlled substance meant for personal use. However, the legal consequences can quickly intensify depending on what else is found or suspected. Prosecutors don’t just look at the quantity. They focus on the total picture to determine whether the case involves more than mere possession.
Here are common factors that can elevate simple possession to a more serious offense:
- Possession with large amounts of cash. Officers may argue the money indicates drug sales, especially if it’s bundled or hidden with the drugs.
- Multiple baggies or packaging supplies. Small baggies, scales, or ledgers suggest distribution activity even without actual sales.
- Possession near children or in protected areas. Having drugs in a school zone or around minors can trigger enhanced penalties.
- Possession while armed. Being caught with both drugs and a firearm can result in felony charges and mandatory minimums.
- Repeat offenses. Even if the current charge is a misdemeanor, prior drug convictions may lead to more severe penalties.
These red flags can shift how prosecutors charge your case and how judges sentence it. Even if you didn’t intend to distribute, these elements may be used to argue otherwise. That’s why understanding the risks and getting legal help early is essential.
Ready to Beat a Simple Possession Charge in Florida?
If you’re facing misdemeanor or felony drug charges in Orlando, don’t try to defend yourself. It is important to your future that you reach out to experienced criminal defense lawyers who know how to fight for you and win.
The attorneys at Moses & Rooth Attorneys at Law bring over 30 years of combined experience to the table. Call us today at 407-377-0150 or through our online form.
Frequently Asked Questions
Can a Simple Possession Charge Be Expunged in Florida?
Under certain conditions, first-time offenders who complete a diversion program may be eligible for expungement, removing the charge from public records.
Does a First-Time Possession Charge Always Lead to Jail Time?
Not necessarily. Florida offers diversion programs and alternative sentencing for eligible first-time offenders, focusing on rehabilitation over incarceration.
How Does Florida Define ‘Controlled Substances’?
Controlled substances are drugs regulated by law due to their potential for abuse and dependency. Florida classifies these into five schedules, with Schedule I being the most restricted.
What If I Didn’t Know the Drugs Were There?
If the drugs belonged to someone else and you were genuinely unaware of their presence, an attorney can challenge the charges.
Can I Be Charged If Drugs Were Found in a Shared Space?
To convict in multi-occupant cases where drugs are found in a shared space like an apartment or car, Florida prosecutors must prove constructive possession: that you controlled the area and knew about the drugs.
Andrew Moses
Andrew has been practicing criminal law his entire career. After graduating from law school he began working as an Assistant State Attorney prosecuting cases in Orange and Osceola Counties. During his time as an Assistant State Attorney, Andrew handled all types of cases ranging from misdemeanors to such serious felonies as drug trafficking and armed robbery. His experience as a prosecutor helped him gain perspective of the criminal justice system and how the government established its cases.
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