Florida Drug Possession Laws

At the Stechschulte Nell Law Firm, our extensive experience handling drug charges enables us to provide the strongest, most effective criminal defense to every client who faces a drug crime prosecution. As a former criminal prosecutor, Attorney Ben Stechschulte understands the tactics and strategies used by police and government lawyers to build drug cases.  



Understanding Florida Drug Crimes  

There are three categories of drug crimes commonly brought before or criminal courts. Each has its own distinct elements, all of which must be proven beyond a reasonable doubt to result in conviction; possession, possession with intent to sell, manufacture, or deliver, and drug trafficking.  

The best criminal defense lawyers protect their clients from convictions by challenging the admissibility and reliability of evidence the prosecution is relying on to prove its case.    

Possession of a Controlled Substance 

What are controlled substances

Federal and Florida law prohibits the unauthorized possession of drugs listed by the government in a group of five categories, called Schedule I, II, III, IV, and V.  

The categories are organized with the drugs deemed to have no safe or effective medicinal use and most likely to be abused in Schedule I. Drugs in each of the other schedules theoretically have marginally less dangerous or less likely to lead to physical or psychological dependence than those listed in the previous schedule.  (See F.S. 893) 

The fact that marijuana remains listed in Schedule I despite Florida’s adoption of laws allowing the use of medical marijuana suggests that the drug schedules do not reflect the current state of medical science or social policy since marijuana and its components are widely believed to have medicinal value treating pain. However, be aware that marijuana remains illegal in Florida except for medical use when purchased through a legal dispensary. 

Common drugs listed in Schedule I include:  fentanyl, heroin, cocaine powder, crack cocaine, LSD, GHB, marijuana, MDMA (ecstasy), methaqualone (quaaludes), mescaline, psilocybin (magic mushrooms). 

Common drugs listed in Schedule II include: Dilaudid, Demerol, methadone, oxycodone (Oxycontin, Percocet), , morphine, opium, codeine (over 90mg/dose), and hydrocodone (Vicodin). 

Common drugs listed in Schedule III include: Tylenol w/ codeine, ketamine, anabolic steroids 

Common drugs listed in Schedule IV include:  Xanax, clonazepam (Klonopin), diazepam (Valium), lorazepam (Ativan), tramadol, triazolam (Halcion), (Ambien). 

Common drugs listed in Schedule V include: some cough meds and pain meds with limited amounts of narcotics and which have low potential for abuse. 

What Counts as Possession of Drugs? 

To prove a person illegally possessed drugs, the prosecutor must prove that the defendant knowingly and intentionally exercised dominion and control over an item the defendant knew contained drugs.  

Physical Possession of an item occurs when it is in your physical custody. Thousands of court cases have been litigated contesting what constitutes possession of an item. The law recognizes that you can possess something by having it on your person, in your hands, in your pocket, in you a bag you are holding, and even in your mouth.  

Constructive Possession of an item occurs when you intentionally exercise dominion and control over something even if it is far away from your physical location. As recently as 2015, the United States Supreme Court held in Henderson v. United States that,  

“Actual possession exists when a person has direct physical control over a thing. . . Constructive possession is established when a person, though lacking . . . physical custody, still has the power and intent to exercise control over the object.”i  

The legal doctrine of constructive possession is what allows the state and federal government to prosecute a person for possession of drugs in their home even if they’re not in the house. Just as you still possess your living room furniture when go on vacation, the law says you have constructive possession of anything you intentionally have within your dominion and control. A kilo of drugs stored in the trunk of your car parked in your driveway can be in your constructive possession if you know it’s there and you have the key. 

Possession with Intent to Sell, Manufacture, or Deliver a controlled substance is a more serious offense because it involves a motive to profit from the drug use of others despite its destructive impact on the community. But proving a defendant guilty of this crime requires more than evidence of mere possession.  

Since people arrested and charged with drug possession are unlikely to declare their intent to sell or deliver the drugs, government prosecutors are required to prove these cases by using circumstantial evidence.  

Sometimes prosecutors argue that the large quantity of drugs, or the presence of scales and packaging material, or a sales log constitute proof of the defendant’s intent to sell. Other cases are made by conducting a “controlled buy” using an undercover police agent.  

Possible Defenses to Drug Possession Charges 

As a former prosecutor, Attorney Ben Stechschulte’s clients benefit from his years of insight into how prosecutors work. If you are facing drug possession charges in the Tampa area, in state or federal court, Stechschulte Nell Law Firm will stand with you asserting and protecting your legal rights, challenging the evidence, limiting your legal responsibility, and working to dismiss or reduce pending charges

 Depending on the facts of the case, we may use one of these effective defenses: 

  • no probable cause to conduct a search (No valid warrant) 
  • client did not know the nature of the item 
  • client did not exercise dominion or control 
  • other people had access and dominion or control 
  • sloppy and unreliable toxicology lab procedures  
  • missing link in chain of custody 
  • police sting was entrapment  
  • no intent to sell (personal use only) 
  • controlled buy informant is witness to crime charged (must be named) 
  • witness statements false or unreliable 

Penalties for Drug Possession in Florida 

Drug crime penalties are severe in both federal and Florida courts. The most serious drug crimes carry prison sentences as high as 30 years. If a death occurs related to a drug crime, a life sentence is a realistic possibility. 

Even a low-level marijuana possession of over 20 grams (less than ¾ of an ounce) carries up to a five-year prison sentence. Less than 20 grams could result in a year of incarceration.  

We’re here to help your defense. Ben was one of Florida’s first criminal defense attorneys to become a board certified criminal defense lawyer and is one of the few with this distinction. Contact the Tampa Professional Criminal Defense Lawyers – Stechschulte Nell Law Firm 24/7: 813-280-1244. 

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