How Does the State Prove Drug Possession

How Does the State Prove Drug Possession

                                        Larry Sandefer, Sandefer Law Firm

      Drug possession is an offense that does not include sale, manufacture, importation, or distribution of a drug or a controlled substance. Most drug possession charges are felonies of the third degree, which, in Florida, is punishable by up to five years in prison as a third degree felony. A possession of less than 20 g of marijuana is a misdemeanor.

      The state has to prove three things to establish a charge of drug possession. Knowledge and control are the key elements. The state must establish that a person knew or should have known of the illicit nature of the substance, meaning, that the person knew of should have known it was a controlled substance or that it was illegal.

      The state must also establish that the person had “control” of the drug. Control does not necessarily mean that a person had to have the drug in their hand or in their pocket. The prosecution must prove that the defendant had the ability to control the substance, meaning that the person was in control of the premises or of the vehicle, or that the substance was in a package or bag belonging to that person. Possession can be joint or multiple. In other words, two or more people can possess the same substance. For example, if marijuana is located in open view on the console of a vehicle and there is a driver and a passenger in the vehicle, marijuana is within the reach of both, and they both know it is there, each can be charged with possession of that one substance regardless of who purchased it or who acutally “owned” it.

      Finally, the prosecutor must prove that the substance itself is a controlled substance. In other words, the prosecutor must show that the substance is controlled under Florida law by statute. Also, there generally must be a scientific analysis by a crime lab of the substance establishing what it is.

      There can be a charge of possession with the intent to sell a controlled substance. This additional element of the charge requires the state establish that the person had the intent to sell or distribute the drug in the person’s possession. This is normally attempted to be established when the police find a large amount of cash on or with the person in possession, or find scales, multiple baggies, or a log which appears to contain a record of sales. Possession with intent to sell may increase the degree of the crime.

      Defenses: Lack of knowledge of the nature of the substance or lack of knowledge of its presence is a defense to a possession charge. Having a valid prescription for substance is also a defense. Other defenses may include entrapment by the police or a police agent. Entrapment means that someone was coerced to do something by the police that they would not have done, or a police agent or the police or their agent did something to cause a person to commit a crime that they would not otherwise have committed. The Fourth Amendment regarding unlawful searches and seizures is always a consideration in any drug defense and arrest.

      For further information on potential drug offenses call Sandefer Law Firm at 727-726-5297 or visit our website at When experience counts, count on experience.