Our law firm gets the same question in every Drug Possession case, “How can a prosecutor prove I had drugs on me?”  This blog explains the concept of possession under Florida law.  Possessing a controlled substance or drugs in the State of Florida is a criminal offense. According to Florida law, possession of drugs (even without intent to sale) is in some cases treated as a third-degree felony. There are basically four elements that must be in place for a Drug Possession charge to stick.

Examining Four Elements

1. Knowledge. Before the accused can be convicted of Drug Possession in Florida, there must be evidence that they had knowledge of the drug’s presence. For example, if you borrowed your friend’s car only to have heroine discovered once you’re pulled over by a law enforcement officer, it may be that you simply didn’t know the drug was there. This could also apply to drugs found on your person.  For example, if you borrowed a friend’s jacket, only to have the police discover that there were drugs in a hidden compartment, your defense could be that you were not aware of the drugs.  Note, though, the prosecution can use common sense and other factors to prove this element.  If you own a car, drive it exclusively, and are pulled over when marijuana is found in the ashtray, all those factors tend to establish you knew the marijuana was in your car.
2. Legality.  You cannot be convicted of Drug Possession if the drugs are not a controlled substance or if you were legally in control of them. For example, if you had oxycodone on your person you could be charged with Drug Possession, unless you had them because they were prescribed by a doctor.
3. Control.  There are two types of possession under Florida law—actual possession and constructive possession.  Actual possession is when you have drugs on your person—in your pocket or in your hand or in your backpack.  Constructive possession is when you have drugs within your control but not necessarily on your person—in your vehicle or home. In both types of possession, it must be proven that you had knowledge of the drugs before a conviction can be secured but obviously it’s a lot harder to prove with constructive possession. In the case of constructive possession, determining knowledge and responsibility for the drugs gets more difficult when examining who owns the property in which the drugs were found. Let’s take a look at a Florida case. In the case of Gizaw v. State, 71 So.3d 214 (Fla. 2d DCA 2011), for example, the defendant allowed her boyfriend to drive her car while they traveled cross country.  At one point the defendant is pulled over, and a suitcase filled with cannabis is discovered in the trunk. Initially, the defendant, who was the owner of the vehicle, was convicted of Drug Possession and sentenced to 40 months in prison.  But her conviction was overturned, because the court felt that there was no proof that the defendant had control over the substance even though she was the owner of the vehicle and in proximity to the drugs when the vehicle was stopped by officers.
4. Intent. If the accused is facing a charge of Drug Possession With An Intent To Sale, the prosecutor will need to prove that there was in fact some intention on the part of the defendant to sell the drugs

If you’ve been charged with Drug Possession, please reach out to a Florida Keys criminal defense attorney today to explore your options.