Definition of Possession
Under Florida law, possession of a controlled substance, such as marijuana, is defined as the ability to exercise the right of ownership, management, or control over the thing possessed. Possession may be “actual” or “constructive” in nature. See Section 893.13(6), Florida Statutes.
Actual Possession means that the cannabis is in the hand of the person accused, or is in a container in the hand of a person, or is so close as to be within ready reach, and is under the control of the person accused. Mere proximity to a controlled substance such as cannabis or pot or weed is not sufficient to establish control over the substance when the substance is not in a place over which the person has control.
Constructive Possession means that the controlled substance is in a place over which the defendant has control, or in which the defendant has concealed it. In order to prove constructive possession, the prosecution must establish:
- the defendant’s control over the controlled substance, and
- the defendant’s knowledge that the controlled substance was within the defendant’s presence.
If a person has exclusive possession of a substance, such as cannabis, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of the substance, knowledge of its presence may not be inferred or assumed.
Under Florida law, it is possible for two or more persons to be in “joint possession” of a substance, such as cannabis. In such a case, each of those persons is considered to be in possession of that article or substance. If a person has exclusive possession of a substance, such as cannabis or cocaine, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of the substance, knowledge of its presence may not be inferred or assumed.
Proving Possession of Cannabis
In Florida, there are three elements required to prove possession of under 20 grams of marijuana:
- The defendant possessed a certain substance;
- The substance was cannabis (less than 20 grams); and
- The defendant had knowledge of the presence of the substance.
One of the harshest aspects of Florida’s marijuana possession laws is that, to obtain a conviction, the State is not required to prove that the defendant knew of the illegal nature of the substance possessed. Rather, lack of knowledge of the illegal/illicit nature of the substance is an affirmative defense that must be raised by the accused. This means that, even though a defendant may not have engaged in criminal wrongdoing because he or she did not know of the illegal nature of the substance (i.e. didn’t know the substance he/she possessed was cannabis), it is up to the defendant to prove this lack of knowledge.
Penalties for Possession of Marijuana
The penalties available for a marijuana possession charge will depend on the amount of cannabis at issue. Where a defendant is found in possession of less than 20 grams, the offense is classified as a first degree misdemeanor, with penalties of up to one year in jail or one year probation, and a $1,000 fine.
A conviction for misdemeanor marijuana possession will result in a two-year driver’s license revocation, in addition to a likely term of probation. If a probationary sentence is imposed, the defendant will be subjected to intrusive random drug testing and be responsible for paying costs of supervision, court costs, fines, costs of prosecution, and completing all other terms and conditions imposed by the court. A failure to complete any one of these conditions, or a failed drug test, or a missed drug test, will result in a violation of your probation, the issuance of a warrant for your arrest, and a likely jail sentence.
Where a defendant is found in possession of more than 20 grams of cannabis, the offense is classified as a third degree felony, with penalties of up to 5 years in prison and a $5,000 fine.
Other penalties for possession of marijuana in Florida include the following:
- Mandatory driver’s license revocation (upon conviction);
- Ineligibility for some government employment;
- Ineligibility for Bright Futures Scholarships and other forms of State financial aid;
- Interference with State licensing, permitting, and certifications without completion of an approved drug treatment program;
- Ineligibility for public housing;
- Interference with employment prospects and college applications;
- Damage to reputation.
Defenses to Possession of Marijuana
Although the facts of every case will differ, cannabis possession is a highly defendable criminal charge.
The first angle of attack in a marijuana possession case is to challenge the legality of the search, detention, or traffic stop that led to the arrest or Notice to Appear. If appropriate in the case, this is done through the filing of a Motion to Suppress Evidence. A Motion to Suppress is a legal challenge to the constitutional validity of a law enforcement officer’s actions. Where police act unlawfully, any evidence they derive as the “fruit” of their illegal actions will be excluded from evidence under the Fourth Amendment “exclusionary rule.” Thus, if a Motion to Suppress is granted, this may deprive the State of Florida of critical evidence (including the cannabis itself) needed to prove the case. Without the required evidence, the case will be dismissed, dropped, or the defendant acquitted.
Common issues that can cause the suppression of evidence concerning cannabis in Florida include the following:
- Police lacked probable cause or reasonable suspicion to conduct a traffic stop;
- Police lacked probable cause or reasonable suspicion to detain or arrest a defendant;
- Invalid search warrant;
- Invalid execution of a search warrant;
- Lack of a search warrant;
- Invalid consent to a search;
- Cannabis or marijuana was not in “plain view;”
- Unlawful prolongation of an otherwise valid traffic stop or investigatory detention;
- Unlawful “pat down,” or “Terry” search;
- Unlawful search incident to arrest;
- Invalid K-9 search or unsubstantiated K-9 “alert;”
- Exceeding the scope of an otherwise valid consensual search;
- Miranda violations;
- Violations of right to counsel;
- Evidence tampering or destruction of evidence;
- Chain of custody issues;
- Lack of valid third party consent;
- Any other illegal police activity.
The second angle of attack in a possession case is to identify factual defenses to challenge the State’s proof or to provide the accused with an affirmative defense. Common factual defenses include the following:
Can the State prove that the defendant had knowledge of the cannabis or marijuana?
- In constructive possession cases, did the defendant have dominion and control, or did some other person exercise dominion or control?
- In constructive possession cases, did the accused have knowledge of the illicit nature of the cannabis (i.e. that the substance was in fact contraband)?
- Did the accused possess the cannabis for purposes of a lawful temporary disposition?
- Was the accused in exclusive possession of the premises or vehicle?
- Is there a proper chain of custody for purposes of introducing the seized marijuana or pot into evidence?
- Does the State’s case rely in whole or in part on testimonial hearsay under Crawford?
- Was the accused entrapped?
- As a whole, is there sufficient evidence to prosecute the case?
These are just a few of the potential defenses that may be raised in a possession of cannabis case. These types of legal issues can be highly technical in nature, and can turn on minute factual details involved in the case. For this reason, hiring a criminal attorney is absolutely critical for successfully defending a weed possession case.
Pretrial Intervention Programs for Misdemeanor Marijuana Cases (Under 20 Grams)
Even where no viable defenses exist to a possession of marijuana charge, it is often possible to obtain an eventual dismissal of the charges by negotiating to enroll a defendant in a misdemeanor or felony Pretrial Intervention Program. These programs call for a defendant to complete specified requirements within a set time period pursuant to an agreement between the State Attorney’s Office and the accused. If completed successfully, the State Attorney’s Office will drop the charges and the case is dismissed. Pretrial intervention is generally limited to those defendants who have minimal or no criminal history.
If you have been accused of possession of marijuana in Jacksonville, Duval County, Clay County, Nassau County, Florida, you may have defenses available to contest the charge or to minimize potential penalties. Contact an experienced Criminal Defense Attorney in Jacksonville for a free consultation.