| Read Time: 4 minutes | Drug Charges
how to beat a drug charge

If you or a loved one were recently arrested for possessing a small amount of drugs, call Moses & Rooth Attorneys at Law right away. We’ll explain the law, the potential sentence, and how to beat a drug charge. 

Never assume you have to plead guilty for simple possession in Florida. You can fight. 

What Is Simple Possession? 

In Florida, a 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 possession means the drugs were on your person, like in your pocket, bookbag, or purse. Constructive possession means you had access to them, but they weren’t on your person. Instead, they’re usually in a vehicle or residence. 

What to Expect from a Simple 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 IV and III 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 five 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 Drug Possession Charge? 

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 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 a number of 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 Florida Criminal Defense 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 needs to 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 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 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 put forth to demand a dismissal, win an acquittal at trial, or pursue a lenient sentence. 

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 that was later discovered to possess drugs. You may not have even opened it or known what it contained. 

Medical Marijuana Use: You may be able to prove you have a prescription for marijuana use. 

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. 

Entrapment: This is a less common defense, but sometimes, it’s appropriate. Entrapment means an officer induced or coerced you into committing a crime that you had no prior inclination or disposition to commit. You have to show you wouldn’t have committed the crime if it weren’t for the officer’s actions. 

Ready to Fight Simple Possession 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 407-720-8507 or through our online form.

Author Photo

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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