Florida imposes strict penalties for the possession and distribution of fentanyl. A fentanyl conviction in Florida can easily result in thousands of dollars in fines along with potential prison time. If you are facing charges for fentanyl in Florida, you need a qualified attorney who will protect your rights and fight on your behalf for a favorable outcome.
Our team at Moses & Rooth knows how to navigate allegations involving fentanyl and tailor a legal defense to your situation. Many clients want to know:
- What do the police do if you are caught high on fentanyl?
- What charges can you get for having fentanyl?
- What penalties can you face for selling fentanyl?
- What are valid legal defenses to charges for selling fentanyl?
What Is Fentanyl?
Fentanyl is a synthetic opioid similar to morphine, but approximately 50 to 100 times more potent. Fentanyl is a prescription drug but is produced and sold illegally in large quantities. The narcotic treats patients with severe pain. Prescription fentanyl is typically given through a shot, a patch on a person’s skin, or a lozenge. Illegal fentanyl is often distributed in pill or powder form.
Fentanyl is frequently mixed with other controlled substances like heroin, cocaine, methamphetamine, or MDMA. Mixing fentanyl with other substances poses a significant risk of overdose. Without a prescription, Florida considers pure fentanyl a Schedule II drug and considers any fentanyl derivative a Schedule I drug.
Is Fentanyl Dangerous?
Fentanyl and other synthetic opioids are the most common drugs involved in overdose deaths. The Centers for Disease Control and Prevention (CDC) reported overdose deaths in the United States grew by 30% from 2019 to 2020 and increased by 15% from 2020 to 2021. The Florida Department of Health issued a public safety alert in July 2022, notifying residents of an exponential increase in overdoses involving fentanyl. According to the alert, Florida recorded 6,150 overdose deaths from fentanyl and fentanyl analogs in 2020.
What Happens If You Get Caught with Fentanyl in Florida?
If you get caught with fentanyl in Florida, the immediate process that follows typically involves arrest, booking, and potential charges. When law enforcement catches you in possession of fentanyl, they have the authority to take you into custody. At that point, you are no longer free to leave and are under the control of the arresting officer.
Following the arrest, you may go through the booking process. During booking, the police will collect basic information about you, such as your name, address, and birthdate. They will also take fingerprints and photographs for identification purposes.
After booking, you will wait in a cell for some time while the police handle paperwork and other matters. You will have a chance to call your attorney if you have one. If you are eligible for bond, the police will inform you how to post a bond to leave the jail. You will be free to go after posting the bond but will need to return for your first appearance in court. Your case will be passed on to the appropriate prosecutor’s office. The prosecutor will review the case and decide what charges, if any, to file. You have a right to a speedy trial, which means that the prosecutor typically has a specific time frame, usually 72 hours, to file charges.
What Are the Criminal Charges for Fentanyl in Florida?
If you are awaiting your first appearance to hear your charges, you are probably wondering what are the penalties if you are caught with fentanyl? Depending on the amount of fentanyl in your possession, you will likely face charges of possessing a controlled substance or trafficking of a controlled substance.
Fentanyl Possession Charges
Florida Statute Section 893.13(6)(a) outlaws possession of fentanyl without a valid prescription. Having “possession” of fentanyl means that you knew the substance was illegal and either 1) had the fentanyl on your person or 2) had knowledge that it was in your presence and you had control of it. This even includes being caught with a small bag of fentanyl.
Florida considers possession of fentanyl a third-degree felony. A third-degree felony carries a maximum potential prison sentence of five years, a fine of up to $5,000, possible suspension of your driver’s license, and mandatory drug counseling.
Fentanyl Trafficking Charges
If someone has more than four grams of fentanyl in their possession, they may be charged with fentanyl trafficking. Florida considers the trafficking of fentanyl a first-degree felony. A judge cannot sentence a person convicted of fentanyl trafficking below the statutorily required mandatory minimum sentence unless the State Attorney agrees to waive the mandatory minimum sentencing requirements.
Mandatory sentencing requirements for fentanyl trafficking
- 4 grams or more—3 years in prison and a $50,000 fine;
- 14 grams or more—15 years in prison and a $100,000 fine; and
- 28 grams or more—25 years in prison and a $500,000 fine.
Keep in mind that these are only the mandatory minimum sentences. The judge can increase the sentence to 30 years in prison for any trafficking charge above four grams.
Defenses to Fentanyl Charges in Florida
Now that you know what happens if you get caught with Fentanyl in Florida, it may help to know how to defend yourself. Valid legal defenses that apply in cases involving fentanyl charges include the following:
You Have a Valid Fentanyl Prescription
If you tell an officer, “I was caught without my fentanyl prescription,” make sure you have valid proof. Successfully raising this defense is rare because doctors do not prescribe fentanyl often. But this is an absolute defense if you can show that you had a prescription that was valid before the arrest.
The Evidence Against You Is Inadmissible in Court
Some police officers do not follow the proper procedures when collecting evidence. For example, an officer might illegally search your pockets, vehicle, or home without probable cause. A defense attorney can file a motion to suppress with the court if the officer’s search violated your rights. If the court grants the motion, the prosecutor can’t use evidence found as a result of the search.
The prosecutor also needs to show that whatever you had in your possession was actually fentanyl. To do this, they will send it to a lab for testing. However, it is imperative that they maintain an unbroken chain of custody from the moment the police seize the alleged drugs. If a defense attorney can show that there is a gap in this chain, then the validity of the test can be called into question.
Scenario: You are walking down the street when a police officer asks to see your identification. You ask if you committed a crime, and he says that you look suspicious. You refuse to provide your driver’s license, and the officer places you under arrest and searches your pockets. He finds fentanyl and charges you for having possession. Because looking suspicious is not a crime, the search was illegal. This makes the evidence inadmissible.
The Fentanyl Belonged to Someone Else
Police often find fentanyl in places where multiple people have access. The prosecutor cannot charge everyone who had access to the space because no one had actual possession. Instead, the prosecutor will need to show constructive possession.
Constructive possession requires the prosecutor to prove that you 1) knew about the fentanyl and 2) had ownership or control of the drug. Without these elements, you cannot be found guilty of possession.
Scenario: You borrow a friend’s car while yours is in the shop. The police stop you and find fentanyl in the trunk. Your friend never told you the fentanyl was in the vehicle. Because the drugs belong to your friend and you were unaware of their presence, the police can’t convict you of possessing fentanyl.
It is not a valid defense that a person believed the substance they possessed was a controlled substance other than fentanyl, like heroin or cocaine.
What Is the Charge If You Give Someone Fentanyl and They Die?
In response to the opioid crisis, the Florida Legislature has revised criminal statutes to increase the charges for drug-related crimes. Under Florida law and federal law, you could be charged with first-degree murder for providing fentanyl to someone that causes their death. These charges could result in a sentence of life in prison.
If You Need Assistance with Fentanyl Charges in Florida, Contact Moses & Rooth
When your freedom is at stake, you cannot afford to hire an inexperienced, unqualified attorney to represent you. Luckily, Attorney Andrew Moses and Attorney Jay Rooth both have extensive knowledge of the criminal justice process.
At Moses & Rooth, we pride ourselves on helping our clients through some of the most difficult times in their lives. From misdemeanors to serious felonies, we have the experience necessary to provide you with the zealous advocacy that you need and deserve. Contact us today to discuss your case and see how our criminal defense attorneys can help you fight for your rights.