Trafficking in Fentanyl in Florida
Trafficking in Fentanyl is a First Degree Felony in Florida.
Florida imposes mandatory minimum prison sentences and stiff fines for people convicted of Trafficking in Fentanyl.
Under Florida Statute 893.135(1)(c)(4), the crime of Trafficking in Fentanyl is committed when a person knowingly possesses, sells, purchases, manufactures, delivers, or transports 4 grams or more of fentanyl or any derivative compound.
Fentanyl Trafficking Thresholds
If a person is caught trafficking in fentanyl, the mandatory minimum penalties are determined by the following fentanyl trafficking thresholds:
- 4 grams or more, but less than 14 grams of fentanyl;
- 7 years prison / $50,000 fine
- 14 grams or more, but less than 28 grams of fentanyl;
- 20 years prison / $100,000 fine
- 28 grams or more of fentanyl;
- 25 years prison / $500,000 fine
Penalties for Trafficking in Fentanyl
The crime of Trafficking in Fentanyl is a First Degree Felony and, depending on the amount of fentanyl, is assigned either a Level 8 or a Level 9 offense severity ranking under Florida’s Criminal Punishment Code.
Under Florida law, unless the State Attorney agrees to waive the mandatory minimum sentencing requirements, the minimum penalties a judge can impose are determined as follows:
- Trafficking in 4 to 14 grams of Fentanyl
- Trafficking in 14 to 28 grams of Fentanyl
- Trafficking in 28 grams or more of Fentanyl
Trafficking in 4 grams or more, but less than 14 grams of Fentanyl
If convicted of Trafficking in 4 grams or more, but less than 14 grams of Fentanyl, a judge can impose a maximum sentence of thirty (30) years in prison, but is required to impose a mandatory minimum sentence of 7 years in prison and a $50,000 fine.
Trafficking in 14 grams or more, but less than 28 grams of Fentanyl
If convicted of Trafficking in 14 grams, but less than 28 grams, of Fentanyl, a judge can impose a maximum sentence of thirty (30) years in prison, but is required to impose a mandatory minimum sentence of 20 years in prison and a $100,000 fine.
Trafficking in 28 grams or more of Fentanyl
If convicted of Trafficking in 28 grams or more of Fentanyl, a judge can impose a maximum sentence of thirty (30) years in prison, but is required to impose a mandatory minimum sentence of 25 years in prison and a $500,000 fine.
Mandatory Minimum Sentences
In drug trafficking cases, the statutorily required mandatory minimum sentence acts as the sentencing floor and a judge cannot sentence a person convicted of drug trafficking below the statutorily required mandatory minimum sentence.
However, mandatory minimum drug trafficking sentences are eligible for incentive gain time and a person will only have to serve 85% of the mandatory minimum sentence provided they don't forfeit any of the gain time due to bad behavior while in prison. [1]
Driver License Suspension
Pursuant to Florida Statute 322.055, a person convicted of Trafficking in Fentanyl will have their driver’s license or driving privilege suspended for six months by the Florida DHSMV.
Professional License Suspension
Pursuant to Florida Statute 893.11, a person convicted of Trafficking in Fentanyl will be subject to the emergency suspension of any Professional License issued by the State of Florida that authorizes the practicing of a profession or trade.
Defenses to Trafficking in Fentanyl
In addition to the pretrial defenses and trial defenses that can be raised in any criminal case, common defenses to the crime of Trafficking in Fentanyl include:
Entrapment
Entrapment occurs when an undercover law enforcement officer or confidential informant induces a person to commit a criminal offense that the person would otherwise have been unlikely to commit. If it can be shown you were entrapped, the court can dismiss the charges against you.
Illegal Search and Seizure
Often, law enforcement exceed the scope of their authority and require people to submit to a vehicle, home, or body search when they otherwise would not be required to; coerce people into agreeing to a search; arrest people without probable cause; or obtain search warrants in bad faith.
If any of these can be proven through the filing of a Motion to Suppress, the courts will suppress the resulting evidence as having been illegally obtained in violation of the Fourth Amendment of the United States; which can lead to an outright dismissal of the case.
Insufficient Evidence
The prosecutor can only prove you possessed fentanyl for the purposes of trafficking in one of two ways:
Actual Possession
To prove that you actually possessed fentanyl, the prosecutor has to show the fentanyl was found on your person. So if the fentanyl was found in your pocket, the prosecutor would have a case involving actual possession of fentanyl.
Constructive Possession
On the other hand, if the fentanyl was found in a place where more than one person had access, the prosecutor would have a much more difficult time proving you possessed the fentanyl because they would have to comply with the law of constructive possession.
The law of constructive possession requires the prosecutor to prove each of three distinct elements before you can be convicted:
- Knowledge of the fentanyl’s presence;
- Knowledge the substance was fentanyl; and
- Dominion and control over the fentanyl.
Below are scenarios where it could be argued the prosecutor could not meet their burden of proving constructive possession.
Scenario 1: You were stopped while driving a friend’s car and police found fentanyl in the trunk, they would be unable to convict you of Trafficking in Fentanyl unless they had some proof that you knew the fentanyl was there.
Scenario 2: You were stopped while driving a friend’s car and police found a fentanyl package in the back seat, but in plain view. They would be unable to convict you of Trafficking in Fentanyl unless they had some proof that you knew the package contained fentanyl.
Scenario 3: You were driving your car, had a friend with you, and your friend takes a container with fentanyl in it and places it in the passenger side door pocket. The police then stop you, see your friend’s container, and arrest both of you. They should be unable to convict you of Trafficking in Fentanyl because even though you knew the fentanyl was there, your friend is the only person who had dominion and control over it.
Substantial Assistance
While not technically a defense, Substantial Assistance is the most commonly utilized method to avoid the mandatory minimum sentencing required for the crime of Trafficking in Fentanyl.
The state attorney is authorized by statute to ask the court to reduce or suspend a sentence of any person who is convicted of drug trafficking when the person provides substantial assistance in the identification, arrest, or conviction of any other person engaged in trafficking in controlled substances.
This remedy is routinely offered pursuant to a “Substantial Assistance Contract” that requires you to “assist” law enforcement in arresting a specific amount of individuals involved in trafficking drugs within a limited period of time.
However, if you are unable to deliver the specified amount of people, you will be required to serve the applicable mandatory minimum prison sentence; regardless of how hard you tried to “assist” law enforcement.
Contact Criminal Defense Lawyer Richard Hornsby
If you have been charged or arrested with the crime of Trafficking in Fentanyl 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.