Possession of Heroin in Florida

It is a Third Degree Felony to possess any amount of heroin in Florida, even a bag or a spoon containing residue.

And because of the serious consequences for such a simple crime, it is important to know the:

Penalties for Heroin Possession

The crime of Possession of Heroin is classified as a Third Degree Felony and is assigned a Level 3 offense severity ranking under Florida's Criminal Punishment Code.

If convicted of felony possession of heroin, you could receive any combination of the following penalties:

  • Five years of probation;
  • Five years in prison; or
  • A fine of up to a $5,000.

Driver's License Suspension

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

Defenses to Heroin 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 Heroin are:

Constructive Possession

If the heroin 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 Heroin: [1]

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

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

Scenario 1: You were stopped while driving a friend's car and police find heroin in the glove box, they would be unable to convict you of Possession of Heroin unless they had some proof that you knew the heroin was present.
Scenario 2: You were driving your car, had a friend with you, and your friend takes a bag of heroin 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 Heroin because even though you knew the heroin was present, 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 Heroin if you can prove that you did not know the substance in your possession was heroin. Importantly, this defense requires you to testify to your lack of knowledge of the substance's illegal nature. [2]

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 Heroin if it can be shown the evidence was obtained as a result of the overdose and need for medical assistance. [3]

Prescription Defense

Given how rarely heroin is lawfully prescribed, this defense would seldom be available. However, in the rare instance where a valid heroin prescription can be produced that pre-dated your arrest, you will have an absolute defense to the heroin charge. [4]

Temporary Possession

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

Examples of temporary possession are when a person is handed heroin by the true owner and asked to hide it during a police encounter, such as a traffic stop; or when holding heroin in the presence of a drug dealer for the sole purpose of verifying or testing the heroin prior to purchasing it; or when passing the heroin 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 Heroin in Central Florida or the Greater Orlando area, contact 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. Florida Statute 893.13(6)(a)
  5. Campbell v. State, 577 So. 2d 932 (Fla. 1991)