AV Preeminent
The Florida Bar

Controlled Substances

Drug arrests can be successfully defended by establishing that the defendant was unaware of the illegal or controlled nature of the drug (this requires a special motion), was in legitimate possession of the drug, for instance, with a medical prescription, that the drug was found in an entrapment operation by the authorities, or that the rights of the defendant as stated in the Fourth Amendment were violated in a search and seizure operation.

Illegal Drug Possession Under Florida Law

Under Fla. Stat. 893.133, the prosecuting attorney must be able to prove that the defendant:

  • Was in actual or constructive possession of a controlled substance
  • Had knowledge as to the presence of the substance

Constructive possession: When an individual does not have actual physical possession of the illegal substance but rather the individual has knowledge of the illegal substance and has the ability to exercise dominion or control over the substance. An example of this would be where illegal drugs were discovered under the seat of an automobile occupied by one or more persons. Shared possession is a form of constructive possession.

Knowledge of the presence of the substance is enough for a conviction as opposed to knowledge that the substance was controlled. In some circumstances, however, not knowing the illicit nature of the substance may be used as a defense.

Prescribed Medication Excluded: Possession of a controlled substance with a valid prescription is exempt under the statute.

Alternatives to Conviction and Incarceration for Possession Alternatives to Being Convicted for a Felony

Possession charges as opposed to delivery (drug dealing) charges are often eligible for a diversion or drug court program, which will allow you to have your case dismissed upon successful completion. Generally, to be eligible, the defendant must:

  • Have little to no prior criminal history
  • Must not be suspected of dealing drugs
  • Diversionary Drug Court Programs
Alternatives to Being Sentenced to Prison

Defendants that have a criminal record are not eligible for drug court or diversion programs. In many cases, repeat offenders face incarceration if convicted. This is especially true if a defendant’s prior criminal history is so significant that they score mandatory prison under sentencing guidelines.

Where a Defendant has a Record but Does Not Score Mandatory Prison

Even where a defendant does not score mandatory prison, their criminal history may subject them to a judge that requires an incarceration sentence. Preemptive measures can avoid this exposure such as:

  • Voluntarily entering treatment or recovery prior to resolution of the case
  • Been evaluated by a drug abuse and prevention psychologist or facility
  • Residing at a drug and alcohol recovery house

Where a Defendant Scores Mandatory Prison

  • Motion for Downward Departure
  • Youthful Offender

Defenses to Possession of a Controlled Substance
  • Motion to Suppress Evidence
  • Motion to Dismiss
  • No Knowledge of the Presence of Substance
  • No Knowledge of the Illicit Nature of Substance (in some cases)


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