Drug Crimes

POSSESSION IS 9/10THS OF THE LAW

The word “possession” has a particular meaning under the law. Possession of a drug does not necessarily require ownership, but is merely knowingly exercising dominion or control over the substance even if for a very short period of time. The State may try to prove a case of possession by either actual or constructive possession. However, the prosecution often fails when the case is one of constructive possession and here is why…

“Actual possession” means to be in direct physical contract with the substance wither in your hand, pockets or in something that you are carrying like a purse, suitcase or backpack.

“Constructive possession” means that you are not actually in physical contact with the substance, and then the State must prove beyond a reasonable doubt both that the accused:

• Knew of the presence of the drugs
• Exercised dominion or control over the drugs

Additionally, in a constructive possession case, an affirmative defense that can be raised is that the accused should be found not guilty if there is a reasonable doubt as to whether the accused had knowledge of the illicit nature of the controlled substance. That means no defendant should be found guilty if he/she is sitting in a car next to a kilo of cocaine unless they know that the substance is cocaine and are exercising some control over it.

The Florida Supreme Court Jury Instructions also permit a defense attorney to request special jury instructions such as “Mere proximity to a controlled substance is not sufficient to establish control over that controlled substance when it is not in a place over which the person has control.” Such as a jointly occupied vehicle, home, apartment or classroom.

Knowledge of the presence of the drug can be inferred from circumstantial evidence, including possession or ownership of the premises or vehicle where the item was found. However, if more than one person jointly occupies the premises or vehicle where the drugs are found, then the knowledge of the accused will not be inferred from his possession of the premises or vehicle, but rather must be established by independent proof, such as an admission of possession. That is why if you are ever questioned by law enforcement you should immediately invoke your right to have an attorney present before and during questioning. There is no statement that you can make to help yourself. I like to explain it this way: If law enforcement had enough to arrest you they would. Rather, often they want you to say something that can be construed to fit into their theory of your guilt. By politely stating that you would request an attorney prior to speaking and then remaining silent, you could be sealing the win or dismissal of any criminal charges against you.

Drug trafficking – could be and often is charged based on the weight of the alleged drugs. A trafficking arrest is common for someone even law enforcement knows is not a drug dealer, but got caught with enough of a controlled substance to qualify for a charge of trafficking. A trafficking charges carries oppressive minimum mandatory prison sentences and huge fines. An experienced attorney can assist navigating the complexities of what the state must prove and winning defenses that can be applied.