Defending Drug Charges in Tampa
Broadly speaking, a "drug" is any substance that alters normal bodily function.
Illegal drugs include, but are not limited to, marijuana, heroin, cocaine, LSD, Ecstasy, and any unauthorized prescription drugs. State and federal statutes strictly prohibit the use, possession, distribution, and manufacture of all illegal drugs. A person who takes part in such illicit activities can be charged with a drug crime.
Specifically, a "drug crime" refers to the use, possession, sale, or furnishing of any drug, intoxicating substance, or drug paraphernalia that is prohibited by law. All drug crimes can be categorized in one of two ways:
- Misdemeanors are less serious crimes punishable by no more than 1 year in a county jail (no State Prison).
- Felonies are more serious crimes punishable by time in a Florida State Prison.
Finally, any and all drug crimes have the potential of being charged under the US Federal statutes if the crime crosses state lines or drugs are brought across international waters. Road trip from Gainesville up to Athens for a football game? Be careful, as you are crossing the FL-GA state line.
A conviction of any drug crime, including simple possession of marijuana, can result in the loss of your Florida drivers license. The length of loss of license depends on the class of drug involved and the seriousness of the crime. A qualified criminal defense attorney will know what can be done to avoid or minimize a license loss.
Drug Crimes: Types of Charges
There are many types of drug crimes. Some of the more common charges are
Drug Possession is the crime of having one or more illegal narcotics in one's possession for personal use, for sale, or for distribution.
Possession of Drug Paraphernalia is frequently charged along with drug possession charges. Drug parapernalia includes pipes, rolling papers, syringes, spoons, etc. It can also include items that appear to be related to drug activity such as scales, bags, and lighters. Sometimes these items are simply coincidental to the presence of marijuana, and can be skillfully explained away by an experienced defense attorney.
Drug Possession (With Intent to Distribute) is usually charged based on overall weight and packaging, as well as any other evidence that may lead law enforcement to believe it is intended to be sold. Items such as baggies, scales, and large sums of cash in close proximity to a large quantity of packaged drugs will look suspicious to the police and may propmt a charge of Possession WITD (with intent to distribute).
The quantity of drugs plays a significant role in determinating if one is selling or distributing but it is not always outcome determinative. Other items found with the drugs such as drug paraphernalia, needles, pipes, bongs, plastic bags, rolling papers, large quantities of money, cell phones, beepers, lists of names with a dollar figure next to the name, etc are all used by the police to convince the courts that one is selling drugs.
Drug Distribution "is the crime of smuggling, transporting, or delivering illegal narcotics." Distribution in the legal sense in Florida can be an exchange of money for drugs but it can also be a sharing of drugs among friends. Distribution is an important factor to be examined by a qualified attorney.
Drug Traffickingis the crime of buying and selling (trafficking) of illegal drugs. *** Note: The distinguishing characteristic between distribution and trafficking is the weight of the controlled substance. ***
Drug Delivery is the crime of transferring or attempting to transfer possession of a controlled substance to another person.
Drug Manufacturing is the crime of producing unlawful controlled substances.
Drug Crimes: Punishment and Contributing Factors
Punishments for drug crimes are determined on a case-by-case basis and can be quite severe. Depending on the particular circumstances of the case, such offenses can result in a broad range of consequences, including imprisonment, monetary fines, court mandated drug rehabilitative programs, probation, drug offender registration, and community service.
Many factors determine a sentence for a drug-related crime. Most commonly, the following aspects are weighed heavily in regard to the crime at hand:
- Drug Classification: High vs. Low based on the type of drug
- Drug Quantity: Amount based on weight
- Purpose of Possession:For Personal Use vs. For Sale to Others
Additionally, the "Level of Possession" plays a crucial role in sentencing. The law recognizes several kinds of possession and differentiates among them in the following way:
Actual Possession vs. Constructive Possession
Actual possession is any amount of drugs carried on your person. In other words, in your pocket, wallet, purse, backpack, etc.
Constructive possession is a legal theory used to extend possession to situations where a person has no hands-on custody of an object (or the police cannot determine to whom the drugs belong).
Let's take the example of a small bag of marijuana found under the passenger seat of a car. It's likely that the driver and anyone else in the car will be charged with Possession of Marijuana, even though the bag was not in any one person's pocket. Note that more than one person may be charged with constructive possession of the same bit of marijuana.
Here is where it gets interesting (and difficult to prove for the state): To prove constructive possession, the State Attorney's Office must prove three elements:
- The person knew it was there,
- The person knew it was illegal,
- And the person had control over it.
As you can see, there are many challenges to contructive possession. Primarily, knowledge that the marijuana was under the seat. Is it your car or a friend's car? Did someone else recently drive your car? Do you, or did you recently leave your car unlocked, or the windows rolled down? Are you just an innocent passenger in your friend's car?
As recent jury instructions in a FL case advise: "... the jury is cautioned, the "mere proximity alone" to the controlled substance is not sufficient to prove constructive possession." If you have been charged with possession of marijuana, call our office at (813) 254-0254.
Sole Possession vs. Joint Possession
If one person alone has possession of something, this person maintains sole possession. If two or more persons share possession, they share joint possession.
How To Defend a Drug Case
It is imperative to contact a qualified attorney immediately upon a drug arrest or upon receiving information that a summons for your arrest has been issued or will be issued for a drug case. Ms. Palmieri will need to know the precise order of events that took place at the time of the arrest. Any delay in questioning witnesses may cause memories to fade.
Following a formal charge, Ms. Palmieri will examine a series of defenses and determine how the case can best be approached. The following are defenses that are commonly used. The approach Ms. Palmieri uses for your case may be different.
Motion to Suppress (the Evidence)
This motion is employed when there is evidence suggesting that the police have violated the rights of the accused and illegally searched or illegally seized drug evidence. If successful, the drugs cannot come into evidence and the case is dismissed. Sometimes in a case where it is unclear that rights have been violated, and the court could rule either way on the motion, the prosecuting attorney may consider reducing an intent to distribute charge to simple possession. This may be a result that is satisfactory to all sides, especially if the accused avoids a mandatory jail sentence.
Negotiations (Towards a Lesser Charge)
There are times the accused may be satisfied with a lesser offense, that is, reducing the felony to a misdemeanor. The accused may be able to avoid a conviction if they are a drug dependent person who could benefit from treatment; the court may offer a form of probation with treatment without pleading guilty. The prosecutor may realize that there are weaknesses in the State's case and therefore to avoid a not guilty, the prosecutor may reduce the charge.
The accused may request a trial, hoping that the State does not have the necessary drug certificates to prove that the substance seized is in fact an illegal drug. One may also request a trial because the state cannot prove that they were selling drugs, at best the state can only prove they were using drugs or had drugs in their possession.
If You are Charged With a Drug Crime
If you are charged with any type of drug offense it is imperative that you contact a qualified criminal defense attorney immediately. Any delay in contacting an attorney can jeopardize a potential defense to that case and possibly cause an unnecessary prosecution to take place. Please call our office at (813) 254-0254.
Other Criminal Charges
Individuals who may have been operating a motor vehicle at the time of their arrest for drug charges may also be facing additional charges. To learn more about DUI/DWI charges, click here. If you think you may be facing criminal charges in Florida, click here. If you believe you may be facing federal criminal charges, click here. Or view our list of other practice areas below: