Drug Offenses in the Tampa Bay Area

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Each month, hundreds of drug arrests are made in the Tampa Bay area. Depending on the nature of the substance at issue, and its weight, the associated penalties can range from probation (with a dismissal upon successful completion), to twenty five years in state prison.

One of the more common drug offenses I am retained on is misdemeanor possession of marijuana. Under Florida law, a person who is found to be in possession of twenty grams or less of marijuana is guilty of a first degree misdemeanor (assuming the state can prove each element of the offense beyond a reasonable doubt). A first degree misdemeanor is punishable by up to one year in the county
jail and up to a $1,000.00 fine. Most people charged with misdemeanor possession of marijuana, and particularly first offenders, will not be facing an additional period of incarceration once the bond is posted ( see below for details).

You should know that possession can be either "actual" or "constructive". Actual possession means that the accused has the substance in his or her hand or on his or her person, and he or she is aware of its presence (i.e. in the pants pocket or a jacket pocket). Constructive possession means that the substance, while not on the accused's person, is within his or her immediate vicinity and he or she is aware of its presence (i.e. in the lower dash of a vehicle the person is driving). Possession can also be "joint" for purposes of prosecution: if the contraband is in the immediate vicinity of more than one person, and all are aware of its presence, each may be arrested and prosecuted for possession. Who "owns" the controlled substance does not matter - ownership is not an element of possession.

With regard to marijuana, if the quantity possessed is more than twenty grams, the person is guilty of a felony of the third degree, which is punishable by up to five years in state prison, and up to a $5,000.00 fine. If the quantity of marijuana involved exceeds twenty five pounds, the person is guilty of trafficking in marijuana - a first degree felony, which is punishable by up to thirty years in prison.

While a felony possession of marijuana charge requires a certain weight (above twenty grams) most other controlled substances do not. Possession of a controlled substance, other than marijuana, constitutes a third degree felony in most instances. There is, for example, no such thing as misdemeanor possession of cocaine or misdemeanor possession of heroin. In some cases, where the controlled substance is found in a pipe or other instrumentality used for ingestion, and the quantity is minuscule, the state may agree to file the charge as a possession of paraphernalia (a first degree misdemeanor). Every situation is different however, and each is evaluated on a case by case basis.

Just because a person is arrested for a drug offense does not mean that he or she will be formally charged by the state. As indicated above, the state must prove each element of the offense beyond a reasonable doubt. If it appears that there may be proof issues, the state may elect to file a no-information in lieu of a formal charge. The filing of a no-information terminates prosecution. This will usually happen in a constructive possession case where it cannot be proven that the accused had knowledge of the drug's presence (for example, where the accused is driving someone else's vehicle, the contraband is found in a closed center console, and the accused makes no incriminating statements). Another (and more obvious) example is where a lab test confirms that a suspected controlled substance was not, in fact, a controlled substance.

In most instances involving a first offense for possession of a controlled substance (and where the charge is filed), the person will be afforded an opportunity to enter and complete a pretrial diversion program. PTI is often done in tandem with drug court, which requires the accused person to complete a substance abuse evaluation and complete any recommended treatment. Treatment recommendations can range from none at all (which is rare) to eighteen months in a residential treatment facility (also rare). Most people will be required to complete twelve weeks of treatment with multiple (two to four) meetings per week. This can be of tremendous benefit to the accused person: successful completion of the diversion program will result in his or her charge(s) being dismissed. Depending on the circumstances, the person may qualify to have his or her record expunged thereafter. Of course, there is also the benefit of treatment. Many of my past clients who have successfully completed drug court are now living their lives addiction free.

The penalties become more severe for selling controlled substances. In most instances, a person charged with selling controlled substances will not qualify for drug court or diversion. Multiple counts of sale and possession may cause the accused person to score mandatory prison on Florida's sentencing guidelines. Also, sale of a controlled substance is a second degree felony. The Florida legislature has, in recent years, curtailed the court's authority to withhold adjudication of guilt for felonies of the second degree (and higher). A conviction for any drug related offense in Florida, including misdemeanor possession of marijuana, will result in a two year driver's license revocation.

The penalties for drug trafficking are even more severe and often require the imposition of a minimum mandatory sentence. Minimum mandatories in drug trafficking cases (where no one is killed in the commission of the offense) can range from three to twenty five years and the fine amounts can be as much as $500,000.00. The quantity of controlled substance required to support a trafficking charge depends on the type. Based on the current state of the law, only four grams of oxycodone is required for a trafficking charge whereas twenty eight grams is needed for a charge of trafficking in cocaine.

If you have been arrested for a drug offense in Tampa Bay, an experienced St. Petersburg area criminal defense attorney can help. Often times, the best opportunity to favorably impact the outcome of the case is before formal charges are filed in the first place. Where, for example, it appears that there are proof issues, emphasizing the underlying factual circumstances to the prosecutor may result in the filing of a lesser charge or, in some instances, not at all. "Proof issues" in drug cases typically arise in one of the following five areas: (1) lack of evidence to establish that the accused person had the ability to exercise dominion and control over the contraband; (2) insufficient evidence to establish that the accused person was aware of its presence; (3) the suspected controlled substance is not, in fact, a controlled substance; (4) the weight will not likely meet the threshold requirement for a trafficking charge, or is so close to the threshold that the filing of a possession charge is more appropriate than a trafficking charge given the totality of the circumstances; or (5) the accused had a valid prescription for the controlled substance.

If the charge is filed, there are still many options for a favorable resolution. For example, there may be a fourth amendment issue (related to unlawful search and seizure) that could result in the granting of a motion to suppress the controlled substance. Where this occurs, the state is usually precluded from proceeding with further prosecution, and the charge is nolle prossed (a "nolle prosse" is a document filed with the clerk of court indicating that the state is terminating prosecution after the filing of formal charges). Sometimes, the prospect of a motion to suppress may allow the criminal defense attorney to secure a more favorable disposition that would otherwise be possible (in lieu of filing and litigating the motion). There may (by way of further example) be a violation of the accused person's fifth amendment right against self incrimination or sixth amendment right to counsel during questioning. Unlike a fourth amendment violation, a suppressed statement may or may not preclude further prosecution. Sometimes other evidence in the case will allow the state to proceed, even without an admission or confession from the accused person. Where it is dispositive, however, the state will be precluded from proceeding.

Other defenses in these types of cases include lack of identification and entrapment. An I.D. defense is usually raised in situations where the accused person sells or delivers controlled substances to a confidential informant or undercover narcotics detective and the arrest happens weeks or even months later. As a Pinellas county state prosecutor, I had this defense raised on a couple of occasions, and it was not successful. Usually the confidential informant knows the accused personally and the detective working with the C.I. will look at the suspect's driver's license or ID card in a state DMV database, before and after the transaction, to make a positive identification. Controlled phone calls to the accused person prior to the transaction will also help with positively identifying that person. Phone records will often show that the phone belongs to the person in question and people often make enough statements during the conversation to ID themselves, unaware that they are being recorded.

Entrapment is raised as a defense where it can be shown that the accused person would not have committed the crime but for law enforcement's efforts to induce or coerce the person to commit it. If the entrapment defense is raised, and the person has prior instances of engaging in selling or delivering narcotics, evidence of those prior acts would be admissible at trial to rebut the defendant's asserted lack of predisposition to commit the crime. As a prosector, I had defense attorneys raise entrapment in two separate trafficking cases and it was not successful in either instance because of prior similar conduct on part of the accused. Raising an entrapment defense is something that should be very carefully considered, especially in trafficking situations where the state is willing to reduce the charge and/or sentence as part of a negotiated plea bargain.

This article presents a generalized overview of drug crimes in Florida, including the various types of offenses, minimum mandatories, and potential defenses. As always, specific questions should be directed to an experienced Tampa Bay area criminal defense attorney.

ABOUT THE AUTHOR: Donald J. Kilfin, The Kilfin Law Firm, P.C.
Donald J. Kilfin is a former Pinellas county state prosecutor. He owns and operates The Kilfin Law Firm, P.C., a Tampa Bay area DUI and criminal defense firm representing clients in St. Petersburg, Clearwater, Tampa, and surrounding areas.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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