POSSESSION OF MARIJUANA

Penalties for Possession of Marijuana

Drug offenses can carry serious consequences.  If you suffer a conviction in the state of Florida for the offense of possession of marijuana, it will result in an automatic driver’s license suspension for a period of two years.  Having a conviction for a possession of marijuana charge may also carry a significant stigma that could pose a major barrier to licensing or employment in many types of professions.

 

“Simple Possession” Not as “Simple” as You May Think

Our office meets with many clients who are charged with the misdemeanor offense of “Possession of Marijuana – Under 20 Grams”.  These clients are often shocked to learn that what they thought was a “minor” charge, actually is an offense that may carry far-reaching consequences. Many prosecutors, for example, typically seek a sentence that includes random drug testing, a substance abuse evaluation and counseling or treatment. Florida law likewise requires a mandatory one year driver’s license revocation upon conviction. It is not uncommon for the prosecutor to suggest to the Judge that some jail time is appropriate if the individual’s criminal record reflects a prior conviction for drug possession, cultivation, or sale. “Possession of Marijuana – Under 20 Grams” is designated by the Florida Legislature as a 1st degree misdemeanor carrying up to 365 days in the county Jail and up to a $1,000.00 fine. See Florida Statute 893.13. You should not face this charge without the assistance of a qualified defense lawyer.

 

In Defense of Your Charge

The law dealing with drug possession cases can be complex and the available defenses can vary widely depending on the particular facts and circumstances of your case. At your free initial consultation, we will subject the facts and legal issues associated with your case to a thorough examination. We believe that a client’s input in this process is critical. Their contribution can often assist in our efforts to achieve the best possible outcome.

 

Actual Possession vs. Constructive Possession

The most important thing to keep in mind when dealing with a charge involving drug possession is an understanding that “ownership” of the substance has little to no bearing on the question of “possession.”  Florida’s criminal drug laws do not take into account whether the drugs actually belonged to you or another person.  All the law concerns itself with is whether you were in “possession” of the item.  For purposes of Florida law, possession of marijuana can be one of two types:  “actual” or “constructive.”

“Actual” possession refers to a situation where an individual has an illegal drug on their person.  For example, someone who has a baggie of marijuana in their pocket would be in “actual” possession of the marijuana.

On the other hand, a person can also be in “constructive” possession of a drug.  Constructive possession refers to a situation where a person has knowledge of the item and the ability to access the item.  Consider the following scenario: An individual is stopped while driving a car and law enforcement then searches his vehicle.  The search of the vehicle reveals marijuana in the glove box or center console.  Although the driver wasn’t “holding” the marijuana, Florida law still permits the prosecutor to pursue a conviction for possession of marijuana.  This concept is commonly referred to in the law as having exercised “dominion and control.” That is, the prosecutor attempts to prove that the driver had knowledge of the item’s whereabouts, as well as, the ability to have accessed the drug. If he can show both, then a conviction for possession of marijuana could result.

 

How We Can Fight a Possession of Marijuana Charge – Possible Defenses:

Illegal Search & Seizure

Drug possession charges commonly stem from a search conducted by law enforcement.  Therefore, one of the most important issues to consider is whether the search was lawful.  If the stop or search was illegal it may lead to the evidence gained from that search becoming inadmissible in court.  This concept is commonly called the “fruit of the poisonous tree” doctrine.  The idea is that, if the search is illegal (i.e. the tree is poisoned), all the evidence flowing from the search is tainted (i.e., the fruit is also poisonous) and cannot be used in court.  An experienced criminal defense attorney can examine your case to evaluate the lawfulness of any search conducted by law enforcement.  If the search is suspect, a motion can then be filled to exclude or “suppress” the evidence that flowed from the unlawful search.  Winning such a motion may be highly beneficial, as it could result in preventing the prosecutor from moving forward with the case. Even simply filing a motion that raises significant legal questions may, at times, be an effective bargaining chip in securing lesser penalties or reduced charges.

 

A Lack of Knowledge, Dominion & Control

A common method of attacking a charge of drug possession in “constructive” possession cases is to look closely at the issues surrounding “knowledge,” as well as “dominion and control.”  In some cases, the evidence available to the prosecutor to show that you knew of the item and had access to it may be weak or even nonexistent.  For example, consider a case where marijuana is found in the center console of a vehicle in which you were a passenger. An experienced attorney could argue on your behalf that the State may be unable to show that you knew the marijuana was in the car. Likewise, that since you did not own the vehicle, you did not have access to the drug or the ability to exercise dominion or control of it in its found location.

Depending on the particular facts of your case, other legal issues might present viable defenses to a possession of marijuana charge.  Your attorney can examine the truthfulness and veracity of any witnesses who might be involved, and the extent of law enforcement personnel’s training and experience in investigating drug cases. All of these areas may be productive in revealing defenses and building an effective strategy in your case.

 

What If the Facts Are Against Me?

We are lawyers who want to attain the best possible outcome in your case.  However, there are some situations where it becomes necessary to resolve the case through negotiation rather then by raising defenses or challenging the facts.  In these situations, options may be available to you that can allow for the dismissal of the charge, avoid conviction, or minimize the penalties.  Depending on the facts and circumstances of your case, we may be able to structure an outcome that will serve your best interests.

 

Possible Solutions

  • Getting the Charge Dismissed: We can make formal application for your participation in a “diversion program.”  Your successful completion of this program would result in the judge dismissing the charge against you.

  • Plea Bargains: We can provide facts and “mitigating” evidence to the judge in the best possible light. In some cases, we direct clients to prepare for court by completing certain tasks in anticipation of their court hearing. This preparation and presentation can often lead to plea bargains that achieve the best possible outcome.

  • Avoiding Conviction: We can negotiate with the prosecutor and the court in an effort to secure a “withhold of adjudication.”  This type of disposition would avoid a formal conviction. Resolving your possession of marijuana charge by securing a “withhold of adjudication” could be highly beneficial.  You could thereafter truthfully state that you were not convicted of this drug offense. Furthermore, this would allow you to avoid the suspension of your driving privilege that would otherwise be imposed if you were to be formally convicted.

  • Getting Your Records Sealed: At the conclusion of your case, we can petition the court to seal or expunge all of the records related to your arrest. In most cases this would give you the right to truthfully state that you had never even been arrested or charged with the offense.

     

Penalty Details

Possession

  • Possession of 20 grams or less of cannabis is a misdemeanor punishable by a maximum sentence of 1 year imprisonment and a maximum fine of $1,000.

  • Possession of more than 20 grams of cannabis is a felony punishable by a maximum sentence of 5 years imprisonment and a maximum fine of $5,000.

  • Any person who is knowingly in active or constructive possession of 25 pounds or less of cannabis is a felony punishable by a maximum sentence of 5 years imprisonment and a maximum fine of $5,000.

  • Any person who is knowingly in active or constructive possession of more than 25 pounds - 2,000 pounds of cannabis (or 300-2,000 plants) is a felony punishable by a mandatory minimum sentence of 3 years imprisonment and a maximum sentence of 15 years imprisonment and a maximum fine of $25,000.

  • Any person who is knowingly in active or constructive possession of 2,000 pounds – less than 10,000 pounds of cannabis (or 2,000-10,000 plants) is a felony punishable by a mandatory minimum sentence of 7 years and a maximum sentence of 30 years imprisonment as well as a maximum fine of $50,000.

  • Any person who is knowingly in active or constructive possession of 10,000 pounds of cannabis or more is a felony punishable by a mandatory minimum sentence of 15 years imprisonment and a maximum sentence of 30 years imprisonment as well as a maximum fine of $200,000.

  • Sale or delivery within 1,000 feet of a school, college, park, or other specified areas is a felony punishable by a maximum sentence of 15 years imprisonment and a maximum fine of $10,000.

 

See:

  • Florida Criminal Code § 893.13(h)(3) 

  • Florida Criminal Code § 893.03)(1)(c)(7) 

  • Florida Criminal Code § 893.135 

  • Florida Criminal Code § 775.082(a) 

 

Sale/Delivery

  • The delivery of 20 grams or less without remuneration is a misdemeanor punishable by a maximum sentence of 1-year imprisonment and a maximum fine of $1,000.

  • The sale of 25 pounds or less of cannabis is a felony punishable by a maximum sentence of 5 years imprisonment and a maximum fine of $5,000.

  • The sale of more than 25 pounds- less than 2,000 pounds of cannabis (or 300-2,000 plants) is a felony punishable by a mandatory minimum sentence of 3 years imprisonment and a maximum sentence of 15 years imprisonment and a maximum fine of $25,000.

  • The sale of 2,000 pounds – less than 10,000 pounds of cannabis (or 2,000-10,000 plants) is a felony punishable by a mandatory minimum sentence of 7 years and a maximum sentence of 30 years imprisonment as well as a maximum fine of $50,000.

  • The sale of 10,000 pounds or more of cannabis is a felony punishable by a mandatory minimum sentence of 15 years imprisonment and a maximum sentence of 30 years imprisonment as well as a maximum fine of $200,000.

  • Sale or delivery of cannabis within 1,000 feet of a school, college, park, or other specified areas is a felony punishable by a maximum sentence of 15 years imprisonment and a maximum fine of $10,000.

 

See:

  • Florida Criminal Code § 893.13 

  • Florida Criminal Code § 893.03(c)(35) 

  • Florida Criminal Code § 893.13 

  • Florida Criminal Code § 893.135 

  • Florida Criminal Code § 775.082(a) 

  • Florida Criminal Code § 775.083(1) 

 

Hash & Concentrates

  • Hashish or concentrates are considered schedule I narcotics in Florida.

 

See:

  • Florida Criminal Code § 893.03(1)(c) 

  • Possession of hashish or concentrates is a felony in the third degree. A felony of the third degree is punishable by a term of imprisonment no greater than 5 years and a fine no greater than $5,000.

     

See:

  • Florida Criminal Code § 893.13(6)(b) 

  • Florida Criminal Code § 775.083(1)(c), (d) 

  • Florida Criminal Code § 775.082(3)(d) 

  • Florida Criminal Code § 775.082(4)(a) 

  • Possessing more than 3 grams of hash, selling, manufacturing, delivering, or possessing with intent to sell, manufacture or deliver, hashish or concentrates is a felony of the third degree. A felony of the third degree is punishable by a term of imprisonment no greater than 5 years and a fine no greater than $5,000.

     

The offense is charged as a felony of the second degree if the offense occurred:

 

  • Within 1,000 feet of a child care facility between 6 A.M. and 12 midnight;

  • Within 1,000 feet of a park or community center;

  • Within 1,000 feet of a college, university or other postsecondary educational institute;

  • A felony of the second degree is punishable by a term of imprisonment no greater than 15 years and a fine no greater than $10,000.

     

See:

  • Florida Criminal Code § 893.13(1)(a)(2) 

  • Florida Criminal Code § 893.13 

  • Florida Criminal Code § 775.083(1)(b), (c) 

  • Florida Criminal Code § 775.082(3)(c), (d) 

  • Rutherford v. State, 386 So.2d 881 (Fla. 1980). 

  • Florida defines any product, equipment, or device used to make hashish or concentrates as drug paraphernalia.

     

See:

  • Florida Criminal Code § 893.145 

 

Paraphernalia

Possession of drug paraphernalia is a misdemeanor in the first degree, punishable by a maximum sentence of one 1-year imprisonment and a maximum fine of $1,000.

 

See:

  • Florida Criminal Code § 775.083 

  • Florida Criminal Code § 893.145 

  • Florida Criminal Code § 893.145 

  • Florida Criminal Code § 893.147 

 

Miscellaneous

Conviction causes a driver's license suspension for a period of 1 year.

 

See:

  • Florida Criminal Code § 322.055 

 

CALL WEKSLER LAW GROUP NOW AT (877) 230-2986!
Set up a consultation with one of our experienced Florida criminal defense lawyers, who know how to fight and win Florida Possession of Marijuana charges. 

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ron@wekslerlawgroup.com

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