What is Possessing Drugs
Drug possession is defined by F.S. 893.13 as unlawfully being in actual or constructive possession of a controlled substance without a prescription. These drugs include cocaine, cannabis, crack, heroine, hydrocodone, and oxycodone as some of the more popular drugs. It is important to note that the crime is possession of drugs not ownership. Therefore the crime is possessing the drugs, and the fact that the drugs aren’t yours probably will not be a defense.
What is Actual Possession
Actual Possession of drugs is a simple concept. It’s basically saying that you actually had the drugs on you. Often times defendants are charged with being in actual possession of drugs when law enforcement searches them, and they find drugs in their pockets.
What is Constructive Possession
Constructive possession is when the prosecutor is saying that the defendant was in possession of the drugs even though the drugs weren’t found on the defendant. In order to prove that a defendant constructively possessed drugs the prosecutor must show two things: 1) that the defendant had dominion and control over the drugs; and 2) that the defendant had knowledge that the drugs were in his presence.
In order to get a conviction for a constructive possession case the prosecutor must have independent evidence putting the drugs on the defendant. The prosecutor can prove constructive possession by circumstantial evidence. If the drugs are found in a place that the defendant had exclusive control over, then knowledge and control of the drugs can be inferred, and the prosecutor will be allowed to proceed on the theory of constructive possession.
Penalties for Drug Possession
The penalties for possessing drugs can vary depending on the kind of drug. Marijuana is a first degree misdemeanor punishable by up to a year in jail. Other narcotics such as cocaine, heroine, oxycodone, hydrocodone, and methamphetamine are third degree felonies and are punishable by up to five years imprison. If a defendant is caught with over a certain amount of drugs the prosecutor can file enhance charges such as intent to distribute.
Defenses to Drug Possession
There are a number of defenses to possessing drugs. Probably the most common defense arises when the defendant is alleged to be in constructive possession of the drugs. If the prosecutor is alleging the defendant had exclusive control over the place where the drugs were found, then the defendant can defend against the allegations by showing he did not have exclusive control. Some courts have also held that it is a defense to the crime of possessing drugs if the defendant only had temporary possession of the drugs for lawful disposal. Such instances would include giving medicine back to the person it belonged too. Also if a defendant has a prescription to the drugs it could potentially be a defense as well.