Possession of Hydrocodone in Florida

Hydrocodone, the generic name for Vicodin, Norco, and Lortab.

In Florida, Hydrocodone is a Schedule II controlled substance and it is a Third Degree Felony to possess less than 14 grams of Hydrocodone without a prescription.

As a Schedule II controlled substance, Hydrocodone is considered to have a high potential for abuse due to severe psychological or physical dependence and its use is severely restricted in medical treatment.

Hydrocodone Trafficking Threshold

Possession of 14 grams or more of Hydrocodone is prosecuted as Trafficking in Hydrocodone. The trafficking weight is determined by how much the Hydrocodone pill weighs, not by the pill’s dosage.

As a result, a person could have ten Hydrocodone pills with a combined dosage of less than 14 grams of Hydrocodone, but because the combined weight of the pills is more than 14 grams, the person would be guilty of Trafficking in Hydrocodone under Florida law and subject to a minimum-mandatory prison sentence.

Penalties for Hydrocodone Possession

The crime of Possession of Hydrocodone is a Third Degree Felony in Florida and punishable by up to five (5) years in prison, five (5) years of probation, and a $5,000 fine.

Possession of Hydrocodone is assigned a Level 3 offense severity ranking under Florida’s Criminal Punishment Code and a judge may sentence a person convicted of Possession of Hydrocodone to probation, but may also impose a sentence up to the statutory maximum of five years in prison.

Driver License Suspension

Pursuant to Florida Statute 322.055, any person convicted of Possession of Hydrocodone will have their driver’s license or driving privilege suspended for six months by the Florida DHSMV.

Florida law requires that your driver’s license be suspended for six months upon conviction.

Defenses to Hydrocodone Possession

In addition to the pretrial defenses and trial defenses that can be raised in any criminal case, specific or common defenses to the crime of Possession of Hydrocodone are:

• Constructive Possession
• Expiration Date
• Illegal Search and Seizure
• Lack of Knowledge
• Legal Disposal
• Overdose Defense
• Prescription Defense
• Temporary Possession

Constructive Possession

If the Hydrocodone was found in a place where more than one person had access, the prosecutor would have to comply with the law of constructive possession, which requires the prosecutor to prove the following two elements before you can be convicted of Possession of Hydrocodone: [1]

1. Knowledge of the Hydrocodone’s presence;
2. Dominion and control over the Hydrocodone, which means more than the mere ability to reach out and touch the Hydrocodone. [2]

Below are scenarios where it can be argued the prosecutor could not meet their burden of proving constructive Possession of Hydrocodone.

Scenario 1: You were stopped while driving a friend’s car and police find Hydrocodone in the glove box, they would be unable to convict you of Possession of Hydrocodone unless they had some proof that you knew the Hydrocodone was present.

Scenario 2: You were driving your car, had a friend with you, and your friend places a container of Hydrocodone at his feet. The police then stop you, see your friend’s container, and arrest both of you. They should be unable to convict you of Possession of Hydrocodone, because even though you knew the Hydrocodone was present, your friend is the only person who exercised dominion and control over it.

Expired Prescription Drugs

Contrary to popular opinion, it is not illegal to possess expired hydrocodone as long it was were originally prescribed to you.

All the expiration date reflects is the final day that the manufacturer guarantees the full potency and safety of a medication. [3]

However, studies have shown that most prescription and over-the-counter drugs are perfectly good to use up to 15 years after the expiration date. [4]

Illegal Search and Seizure

More often than not, law enforcement exceed the scope of their authority and require people to submit to a vehicle, home, or body search; or they may coerce a person into agreeing to a search. If we can prove that either instance occurred, the courts will suppress the resulting evidence as having been illegally obtained.

Other suppression possibilities that may present themselves are: if law enforcement obtained a search warrant in bad faith or if you were arrested without probable cause.

Lack of Knowledge

It is an affirmative defense to the crime of Possession of Hydrocodone if you can prove that you did not know the substance in your possession was Hydrocodone. Importantly, this defense requires you to testify to your lack of knowledge of the substance’s illegal nature. [5]

Legal Disposal Defense

It is an affirmative defense to the charge of Possession of Hydrocodone for a person to briefly possess Hydrocodone without a prescription for the sole purpose of legally disposing of it. [6]

In order to raise a legal disposal defense, the Hydrocodone must have been acquired without an unlawful intent, possessed for a brief period of time, solely for the purpose of disposing of the Hydrocodone without delay.

Overdose Defense

Any person who is experiencing a drug-related overdose and needs medical assistance, or a person assisting the person that needs medical assistance, is immune from prosecution for Possession of Hydrocodone if it can be shown the evidence was obtained as a result of the overdose and need for medical assistance. [7]

Prescription Defense

While it seems obvious, many people are arrested for possession of Hydrocodone when they are unable to produce a valid prescription or a recently dispensed pill bottle. These arrests usually occur when law enforcement have stopped you for suspicious behavior and discover Hydrocodone stored in an unconventional container.

However, if you can produce a valid Hydrocodone prescription that pre-dated your arrest or have a doctor execute a letter that they dispensed a sample amount, you will have an absolute defense to the Hydrocodone charge. [8]

Importantly, the Prescription Defense is not only available to the Hydrocodone prescription holder but also any individual authorized by the Hydrocodone prescription holder to hold the medications on his or her behalf. [9]

Temporary Possession

The defense of temporary possession can be raised where a person takes momentary, temporary, or transitory possession of hydrocodone from the true owner. Under such circumstances, the person is not considered to be in legal possession of the hydrocodone because the person never exercised complete dominion and control over the hydrocodone. [10]

Examples of temporary possession are when a person is handed Hydrocodone by the true owner and asked to hide it during a police encounter, such as a traffic stop; or when holding Hydrocodone in the presence of a drug dealer for the sole purpose of verifying or testing the Hydrocodone prior to purchasing it; or when passing the Hydrocodone from the owner to a third person.

Contact Criminal Defense Lawyer Richard Hornsby

If you have been charged or arrested with the crime of Possession of Hydrocodone in Central Florida or the Greater Orlando area, contact Orlando Criminal Defense Lawyer Richard Hornsby today.

The initial consultation is free and I am always available to advise you on the proper course of action that can be taken.

References

1. GG v. State, 84 So. 3d 1162 (Fla. 2nd DCA 2012)
2. Smith v. State, 123 So. 3d 656, 658 (Fla. 2d DCA 2013)
3. 21 C.F.R. 211.137
4. Drug expiry debate: the myth and the reality
5. Florida Statute 893.101
6. In re Std. Jury Ins. Crim. Cases, 141 So. 3d 132, 134 (Fla. 2013)
7. Florida Statute 893.21
8. Florida Statute 893.13(6)(a)
9. State v. Latona, 75 So. 3d 394 (Fla. 5th DCA 2011)
10. Campbell v. State, 577 So. 2d 932 (Fla. 1991)