How To Get A Possession Charge Dismissed

Any person convicted of illegal possession of hydrocodone will also have their driver's license revoked for one year.

OXYCODONE POSSESSION

Oxycodone is the generic name for Percocet, Oxycontin, and Tylox. Possession of up to seven grams of oxycodone without a valid prescription is a third-degree felony that is punishable by up to five years in prison, five years of probation, or a fine of up to $5,000.

Possession of more than seven grams without a valid prescription is a trafficking offense.

A conviction of illegal oxycodone possession will also result in a driver's license suspension for one year.

SYNTHETIC DRUG POSSESSION

Synthetic drugs have been all the rage in the last couple of years. Think of bath salts, spice, or K2.

Possession of less than three grams of synthetic drugs is a first-degree misdemeanor. A conviction can lead to up to one year in jail, one year of probation, or a fine of up to $1,000.

Possession of more than three grams of synthetic drugs is a third-degree felony. That means the judge can impose up to five years in prison, five years of probation, or a $5,000 fine.

A conviction for possession of synthetic drugs will also result in a one-year driver's license revocation.

XANAX (ALPRAZOLAM) POSSESSION

Illegal possession of Xanax, or alprazolam, is a third-degree felony in Florida.

Possession of Xanax without a prescription can get a person up to five years in prison, five years of probation, and a $5,000 fine.

Any person convicted of possession of Xanax will also have their driver's license suspended for one year.

Defenses To Drug Possession Charges In Florida

INSUFFICIENT EVIDENCE

In Florida, the most common defense to drug possession charges is the insufficient evidence defense.

Simply, each charge has elements that make up the crime that the state must prove to get a conviction.

The state must prove each of these elementsbeyond a reasonable doubt.Beyond a reasonable doubt is the highest standard in our legal system.

And if the state can't prove any one of the elements of a charge, then the state can't prove the entire charge.

CONSTRUCTIVE POSSESSION

Constructive possession is a defense when cocaine or another drug is found in a place to which more than one person had access.

Construct possession is a helpful defense, because it requires the state to additionally prove that the accused had knowledge of the presence of the drugs and the ability to exercise and maintain control over the drugs.

These are additional elements that need to be proven beyond a reasonable doubt. And as you can imagine, without statements by a witness or the accused, it can be tough to prove knowledge of the presence of drugs.

For example, imagine you're stopped while driving a friend's car and police find cocaine in the trunk of the vehicle. In this scenario, the police would be unable to convict you unless they had some sort of proof or evidence that you knew there was cocaine in the trunk of the car.

ILLEGAL SEARCH AND SEIZURE

A strong defense that can lead to charges being dismissed is the illegal search and seizure defense.

Our Constitution requires that police officers act reasonably when they search or seize a citizen. If a police officer is violating constitutional rights by searching or seizing a citizen unreasonably, then we need to do something about that. And the best thing to do about it? We can ask the judge to throw out any evidence that a police officer secured through violating someone's constitutional rights. The end result is a dismissal of the charge.

For example, consider someone who is driving down the road with a big bag of marijuana in the backseat. The accused is driving a vehicle that the police officer thinks just looks like a drug dealer's vehicle. So the officer pulls the accused over for no legal reason.

The police officer immediately smells the marijuana when he comes up to the driver's side window, orders the accused out of the car, arrests him, and then the driver is charged with possession of marijuana.

A good lawyer will use the search and seizure defense to get the case dismissed. If the officer didn't have any legitimate reason for pulling over the accused, then the officer acted unlawfully and the evidence of the marijuana, no matter how much is in the backseat of the car, should be tossed out. If the evidence of the marijuana is tossed out, then there's no way that the state can prove its charge.

LACK OF KNOWLEDGE

There is an affirmative defense to the charge of possession of drugs if the accused can prove that he or she did not know that the substance in their possession was a drug.

Consider this hypothetical yet realistic example. A man is pulled over by the police. He's ordered out of the car. When the police pat down the accused, they find a baggie of cocaine in his pants.

The accused looks at the police and says, "I had no idea that was there. These jeans aren't even mine. I just came from my cousin's house where I'd gotten very dirty from working in the yard and I just grabbed a pair of his pants and put them on. I had no idea that cocaine was there."

The accused is willing to go to trial and testify. If the accused is believable in front of a jury, the jury may end up acquitting the accused because he did not have knowledge that the drugs were in his pants. It's an absolute defense under Florida law to any drug possession charge.

OVERDOSE DEFENSE

Consider a situation where someone goes to the hospital for an overdose and starts telling the hospital staff about hydrocodone pills in his pocket — essentially admitting to possessing drugs. The hospital, recognizing that there are illegal drugs on the patient, call the police and the police arrest the man.

A criminal attorney in this case would want to utilize the overdose defense.

In our Florida statutes, there is a specific defense of immunity available to someone who is overdosing on drugs and seeks medical treatment, and as a result evidence is obtained regarding illegal drug possession.

PRESCRIPTION DEFENSE

If you have a legal prescription for a controlled substance or another drug, then proof of the legal prescription is an absolute defense to the charge.

However, if the script for the drugs is illegally obtained, then presenting the script to the state may actually result in additional charges such as obtaining a prescription under fraud.

TEMPORARY POSSESSION

What about a situation where someone touches a drug but only temporarily to pass it on to another person?

If such a person takes possession of the drug only momentarily, then that person is not considered in legal possession of the drug because that person never exercised dominion and control over it.

For example, what if you are a passenger in a car and the driver is pulled over by the police? The driver, fearful of the police, pulls a baggie of oxycodone out of his pocket and hands it to you. The officer comes up to the passenger side window first, sees the oxycodone, and puts you under arrest.

The temporary possession defense states that you never had actual permanent dominion and control of the drug. Thus, a conviction is not warranted.

ALIBI

An alibi is when a person accused of a crime in Florida presents proof that it was impossible to have actually committed the crime because the accused was somewhere else during the time that the crime was committed. And alibi must be able to cover the entire time period during which the crime occurred.

What makes alibi unique is that the person accused of the crime invokes the defense before trial and puts everyone on notice that the alibi defense is going to be used. We have a specific rule of criminal procedure that addresses the alibi defense. Under that rule, the person accused of a crime must, at least 10 days before trial, serve the prosecuting attorney a written notice of the intention to claim an alibi. This notice of claiming alibi also has specific factual information such as the place where the accused was at the time of the alleged offense, and the names and addresses of any witnesses who could establish the alibi.

It's important for the accused to file this notice of alibi prior to trial. If she does not, and instead brings it up for the first time at trial, she runs the risk of the court excluding the alibi evidence in front of the jury.

ENTRAPMENT

The entrapment defense is a legal justification, or excuse, to an otherwise unlawful possession of drugs. Entrapment happens when police or other governmental agents have improperly induced a person to commit a crime when that person is not otherwise likely to commit a crime like that in the first place.

Consider the following scenario. Paul is an undercover narcotics agent who's really looking to make a big splash and add some arrests to his resume. Paul has a confidential informant named Maria. Maria tells Paul that she believes Diana would buy drugs from Paul.

The informant introduces Diana to the undercover police officer. Initially, Diana wants nothing to do with Paul's attempts to get her to buy drugs. But Paul wants to make a name for himself, and he is persistent. Paul's really putting the pressure on. Eventually Diana buys the drugs, and Paul the undercover police officer gets a warrant for Diana's arrest.

This type of situation is one that Paul the undercover police officer made happen. This type of fact pattern deserves a look at the entrapment defense.

There is a statute that addresses the entrapment defense as it applies to drug crimes and other criminal acts. Under the statute the defendant has to establish the following by a preponderance of the evidence:

that the accused was encouraged by an law enforcement officer or his agent to engage in criminal conduct so the officer could obtain evidence of the commission of a crime;
the accused engaged in such criminal conduct as a direct result of law enforcement's encouragement;
the person who induced or encouraged the accused was law enforcement;
the person who induced or encouraged the accused used methods of persuasion or inducement to create a substantial risk that the crime would be committed; and
the accused was not a person ready to commit the crime at the time that the person actually committed the crime.

While there is certainly a place for the entrapment defense, each case has to be analyzed thoroughly to make sure that this defense is the appropriate one. Any time that you present an affirmative defense, where the accused is in essence admitting to committing criminal activity, the defense needs to be one that has a strong chance of success.

"CHRONIC SUBSTANCE ABUSER"

Florida law relies upon a criminal punishment code scoring system to determine the minimum allowable sentence for all felony crimes.

In Florida, if the scoring system point value for a person's crimes are added together and the number is 44 points or more, then that person is facing mandatory prison time.

However, a person convicted of a non-violent drug crime who also scores less than 60 points on the criminal punishment code scoring system and is found by the judge to be a "chronic substance abuser" is eligible for drug offender probation if the judge agrees.

This is powerful. When relying upon the statutory defense, a person who might otherwise score a term of years in prison may be able to convince the judge to instead order drug offender probation.

Options For Resolving Drug Possession Cases

To determine the right options for resolving a drug possession case we need to look at the person's needs, the specific laws that apply to the particular drug charge, and whether a person is guilty or innocent of the drug possession charges they are facing.

PRETRIAL DIVERSION

Pretrial diversion is a program that is run by the state attorney's office, and is usually reserved for first-time drug offenders.

In a diversionary program, the defendant agrees to do some things such as pay a fine, stay out of trouble, attend Narcotics Anonymous meetings, and the like. In exchange, the state attorney agrees to dismiss all charges when the defendant has completed the terms of the agreement.

In essence this is similar to probation, but the defendant is never actually placed on any official probation. That means that if the defendant screws up, they'll simply be revoked from the diversionary program and go back into court exactly where they started.

The obvious benefit to a diversionary program is that when it's all said and done the drug possession charges are dismissed. If a future employer is running a background check on a person who's been through a diversionary program, they may be able see that there was an arrest for a drug charge but they also will see that the state dismissed the charge.

In most of the Tampa Bay jurisdictions, the offender's charge of drug possession can be sealed and expunged after the diversionary program is completed. Once everything is sealed or expunged, future employers won't even be able to find out about the arrest.

DRUG COURT

Drug court is a specific type of diversionary program has been created and funded in each of Florida's counties to address the problem of repeat drug offenders.

The program is more therapeutic and less like a traditional punitive courtroom. There is a process for identifying, evaluating, managing, and placing substance abuse offenders to hopefully avoid the formal criminal justice system.

In drug court, there is an assigned judge who reviews progress reports of each participant. Drug court sounds easier, but it can be more difficult and more thorough for the participating members. Whereas a person on probation may only report to probation once a month, it's common for drug offender court participants to report multiple times per week for drug tests and return to court every couple of weeks.

Drug court at its heart works best for repeat offenders who truly have an issue with substance abuse. It is less effective and sometimes too cumbersome for a first-time offender who perhaps just made a mistake and may not really need to even be in drug court.

SEEK A DISMISSAL

A favorite defense for individuals charged with drug possession in Florida courts is to seek a dismissal.

As you can imagine, the state attorney or a judge won't dismiss the case for no good reason. Rather, there needs to be a good reason to get the case dismissed.

For example, above we talked about the case where the police have acted illegally. If law enforcement acted illegally and as a result the judge has suppressed or eliminated evidence from consideration, then it may be appropriate for the state attorney to simply dismiss the case.

In other cases, the state is simply unable to prove the elements of the crime. Thus, an attorney can seek dismissal based on that.

The judge upon a formal motion from an attorney can do dismissals. They are less frequently done as a result of a defense attorney negotiating with the state attorney.

Obviously a dismissal is the best-case scenario. That's because the state attorney or the judge is dismissing it without the person charged having to do anything in exchange.

PLEA

Most cases are resolved by some type of plea negotiation. This is like a settlement on the charge.

When negotiating a plea, the criminal defense attorney is both negotiating the charge of which a person would be convicted and also the punishment for the charge.

For example, a state attorney may charge a defendant with sale of cocaine. The state attorney may ask for a minimum of 18 years in prison.

However, through plea negotiations a strong criminal defense attorney may be able to get the charge reduced from the sale of cocaine to the simple possession of cocaine. And perhaps the prison sentence reduced to a simple probationary term.

TRIAL

Finally, trial by a judge or jury is an option to resolve a drug possession charge.

In most cases, a trial will happen after an attorney has tried some of the other options above.

For example, perhaps a defendant is charged with possession of alprazolam (Xanax). The officer found the Xanax in the backseat of a vehicle. The criminal defense attorney believes that the evidence is insufficient to prove the case. Also, the defendant is upset because he swears that he is innocent of the charge.

Originally, perhaps the defense attorney seeks an outright dismissal of the case. When the attorney is not able to get an outright dismissal, he and his client decide they would accept a diversionary program. They do not want to take the case before a judge at trial.

However, the defense attorney and his client also can't get the state attorney to agree to a diversionary program. Only then does the attorney and the defendant switch gears and prepare to try the case in front of a jury.

In a jury trial, the state attorney has the burden of proving their case to the exclusion of all reasonable doubt. Remember those elements of a drug possession charge that we talked about earlier? The state attorney is going to have to prove to the jury each one of those elements beyond a reasonable doubt.

If the jury convicts the defendant, then he will need to be sentenced by the trial court. But if the jury comes back with a not guilty verdict, all charges are dismissed and that person is free to leave the courtroom that day. Contact us to learn how to avoid or minimize sentencing for drug possession.

CRIMINAL DEFENSE

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