Possession of Cocaine in Florida

In Florida, cocaine is a Schedule II controlled substance and it is a Third Degree Felony to possess less than 28 grams of cocaine.

A Schedule II drug 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.

Cocaine Trafficking Threshold

Possession of 28 grams or more of cocaine is prosecuted as Trafficking in Cocaine. Importantly, the weight is not determined by how much pure cocaine is in a mixture, but by how much the mixture containing the cocaine weighs.

As a result, a person could have a mixture that contain less than 28 grams of pure cocaine, but because the mixture's total weight is more than 28 grams, the person would be guilty of Trafficking in Cocaine in Florida and subject to a minimum-mandatory prison sentence.

Penalties for Cocaine Possession

The crime of Possession of Cocaine 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 Cocaine 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 Cocaine to probation, but may also impose a sentence up to the statutory maximum of five years in prison.

Driver's License Suspension

Pursuant to Florida Statute 322.055, any person convicted of Possession of Cocaine will have their driver’s license or driving privilege revoked for one year by the Florida DHSMV.

Defenses to Cocaine Possession

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

Constructive Possession

If the cocaine 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: [1]

  1. Knowledge of the cocaine's presence;
  2. Dominion and control over the cocaine.

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

Scenario 1: You were stopped while driving a friend's car and police found cocaine in the glove box, they would be unable to convict you of possession of cocaine unless they had some proof that you knew the cocaine was present.
Scenario 2: You were driving your car, had a friend with you, and your friend takes his personal bag of cocaine and places it at his feet. The police then stop you, see your friend's bag, and arrest both of you. They should be unable to convict you of Possession of Cocaine because even though you knew the cocaine was there, your friend is the only person who exercised dominion and control over it.

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 Cocaine if you can prove that you did not know the substance in your possession was cocaine. Importantly, this defense requires you to testify to your lack of knowledge of the substance's illegal nature. [2]

Overdose Defense

A person who is experiencing a drug-related overdose that needs medical assistance, or a person assisting the person that needs medical assistance, is immune from prosecution for possession of cocaine if it can be shown the evidence was obtained as a result of the overdose and need for medical assistance. [3]

Temporary Possession

The defense of temporary possession can be raised where a person takes momentary, temporary, or transitory possession of cocaine from the true owner. Under such circumstances, the person is not considered to be in legal possession of the cocaine because the person never exercised complete dominion and control over the cocaine. [5]

Examples of temporary possession are when a person is handed cocaine by the true owner and asked to hide it during a police encounter, such as a traffic stop; when holding cocaine in the presence of a drug dealer for the sole purpose of verifying or testing the cocaine prior to purchasing it; or when passing the cocaine 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 Cocaine in Central Florida or the Greater Orlando area, contact Orlando Criminal Defense Lawyer 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. Florida Statute 893.101
  3. Florida Statute 893.21
  4. Campbell v. State, 577 So. 2d 932 (Fla. 1991)