How Would Possession, Sale, And Distribution Be Defined In Florida? Does That Depend On The Amount Or The Type Of Drug?

As for possession, that is something that runs into trouble for people quite frequently in our state. The Florida Standard Jury Instructions gives the guidelines one needs to know how to distinguish direct possession from constructive possession. This really does not sit well with a lot of people.

When looking at a minor in possession case, you would think that the twenty year-old minor who is sitting there holding a beer that is direct possession. Even if you do not agree with the law, you can see how that makes sense because they are holding it right in their hand, which is direct possession. It starts to get murkier though when the twenty year-old sitting next to a beer cooler who just walked up literally moments before the police arrived. The next thing you know, they are charged with possession. Even though they are sitting there saying, “But I didn’t possess anything”.

Looking at how the jury instructions work, it is found out that there is constructive possession. The best way to describe constructive possession is it works like this. If you know it is there and you know it is illegal and you can exercise dominion and control, meaning he can reach out and grab it, control it, it is in the cooler if it is a beer, it is in the center console if it is in a vehicle, those are the elements of constructive possession.

The problem that someone runs into with constructive possession, whether they are a tourist or local resident, is things such as “knowledge” is not subject to a motion to dismiss. This is very important. A pretrial defense in a drug case is a lot safer than a defense during trial. When it comes to motions to dismiss, or motions to suppress, attorneys often try to line a case up where the different elements can be killed by affirmative defense pleadings before a trial itself because it is safer. Questions such as “Did the person know that the substance in question was illegal?” That is an issue for the jury.

Can they exercise dominion and control or not, that is one of those three elements in question. It is something that can be subject to a motion to dismiss because it does not really require the same type of finding a fact. You can often look at other cases and say in a scenario where a passenger in a motor vehicle is found sitting next to the center console, that passenger cannot be found guilty because the center console was locked and they do not have a key. Therefore, the element of dominion and control cannot be present because it was locked and they do not have a key to it. That is an example of an element of constructive possession that is subject to a pretrial motion.

On the other hand, if the defense says, “I didn’t know it was there,” that is not subject to a pretrial motion because defense lawyers would love to be able to have their client sign a legal oath, an attestation. This is a very seldom used word, but it is a type of written oath where the attorney would want them to be able to say, “I didn’t know”. Based upon the way the case law has worked out, in the case of constructive possession that would not apply.

When you start getting into terms like sale, distribution, trafficking, minimum mandatories, those are cases that are very fact specific on a case by case basis. It becomes necessary in those cases to ask questions that you do not have in a simple less than twenty grams of possession of a marijuana case. You have to start asking questions, such as how was the contraband packaged, and how much contraband was there? You have to see if you are talking about half a pound of marijuana or are talking about one-hundred and fifty-five pounds of marijuana?

Those are two very different things and when you start getting into certain amounts with drugs of any kind, you start running into trafficking charges. With sales, trafficking and distribution charges, it is important to remember that these are things where a partial defense may not win. That is because if the state has to prove sale or distribution and somebody jumps up and says, “Well, no money changed hands,” then the state can still go after distribution. Therefore, one has to be very careful with handling these types of charges because there are lots of hidden landmines in the minefield of Florida criminal law and nowhere is this truer than in drug cases.

Little wrinkles of drug law can really bite the inexperienced criminal defense lawyer. In fact, this is so difficult in so many ways that when it comes to specialization, lawyers in Florida have to take a board certification exam. The Florida Bar exam looks like kindergarten in terms of comparing the complexity. Certification is much more difficult. Sure enough, on every certification exam, there is going to be many questions or one or two very large questions with a big fact pattern about drug cases. Quite frequently, these types of things are going to be on those, what many people might consider to be, small wrinkles of law.

For example, if someone is charged with illegal possession of a prescription drug, say five milligrams of some type of opiate inside of this medication for pain relief, but there is only five milligrams, the person might be thinking, “Well, there is only 5 mg and I have got 10 pills, so that’s 50 mg”. It does not work that way. The court system has come up with a rule of construction which may sound ridiculous, and works like this. Since that five milligrams is mixed in with something like an acetaminophen, which is an over the counter pain reliever that Tylenol made famous many decades ago. However, Tylenol, which is not a controlled substance, is counted as if it were. So, the tablet that contains five milligrams of a narcotic pain reliever and four hundred and ninety-five milligrams of acetaminophen, which is not controlled, that one pill is five hundred milligrams of contraband, not five. It is little things like that, that turn out to be little hinges that swing the big doors to state prison closed.

If you want to know How Possession, Sale, And Distribution Is Defined In Florida, call Attorney Stephen G. Cobb of the Cobb Criminal Defense Law Firm in Florida for a FREE Initial Consultation at and get the information and legal answers you’re seeking.

Posted in Uncategorized | No Comments »