Constructive Possession

Florida Drug Laws
Constructive Possession

Many people do not realize that you can be charged with possession of a drug or a controlled substance without having it on your person. Florida has what are called constructive possession laws. This means that a person is in possession of something if they know it is present and they have the ability to control it.

A good example of this is where someone is stopped for a traffic infraction and on the console between the driver in the passenger is a baggie of marijuana. Because it is visible to both people and either one of them could reach it, both of them can be charged with possessing the same bag. It does not matter who the actual owner is.

However, in that same scenario, if there is nothing visible but there is a baggie of marijuana under the passenger seat or some other substance under the passenger seat, then it is the states burden to prove beyond a reasonable doubt that whoever they charge knew that the baggie was there and knew what it was. If the driver is the only occupant of the vehicle, it is presumed that the driver knows whatever is in the vehicle wherever it may be. This would allow the state to charge someone and then the defense would have to raise the issue of lack of knowledge of the substance. The burden then shifts to the state to prove beyond a reasonable doubt that the person actually knew it was there and what it was.

Also, what people do not realize is that Florida trafficking laws are based on the amount of the substance and not whether there is a sale or an importation of a drug into this country. For example, someone who is searched and is found to be in possession of over 28 g of cocaine is considered to be trafficking in cocaine. As little as 4 g of morphine, hydrocodone, heroin, or oxycodone can be a trafficking amount. The legislature has set minimum mandatory sentences for trafficking charges. Sometimes trafficking charges can be reduced or defenses raised that allowed dismissal or a change in charge. Constructive possession also applies to trafficking if the state can prove that the person knew that the substance was present and had the ability to control it.

At Sandefer Law Firm we handle these type of cases on a routine and regular basis. Call us for a free and confidential consultation. Remember, when experience counts, you can count on experience.