Drug Possession

by Michael Eugene Zmijewski on Aug. 01, 2019

Criminal Criminal  Felony Criminal  Misdemeanor 

Summary: A criminal conviction for a drug offense can result in prison time, lengthy probationary periods, high fines, and suspension of your driving privileges. There are many possible defenses to drug crimes that an experienced drug crimes lawyer can develop to fight your case.

If you or a loved one has been charged with a drug crime, you need to understand that the potential consequences can be quite severe.  A conviction for a drug charge can result in prison time, lengthy probationary periods, high fines, and suspension of your driving privileges.  An experienced criminal defense attorney may be able to help you avoid these dire consequences. 

Whether you have been charged with possession, possession with intent to sell, or drug trafficking, an experienced drug crimes lawyer will explore some of the following defenses to fight your case:

Illegal Search and Seizure

The Fourth Amendment to the United States Constitution is a safeguard of justice and protects people against unreasonable searches and seizures of either self or property by government officials.  In this scenario, a skilled drug crimes lawyer will evaluate your case to determine whether law enforcement had probable cause to stop your vehicle or to search your car or your person. 

Constructive Possession

To establish constructive possession, the state must show that the accused had dominion and control over the contraband, knew the contraband was within his presence, and knew of the illicit nature of the contraband. Brown v. State, 428 So.2d 250 (Fla. 1983).

Insufficient Evidence

When charged with a felony drug offense, the State is charged with the burden of proving that the recovered substance is in fact the illicit drug that law enforcement claims it is.  This means that the State will be required to send the substance to the Florida Department of Law Enforcement (FDLE) to have the substance tested and weighed.  In a number of cases, the substance either doesn’t test positive for what it is alleged to be, doesn’t meet the weight requirement for a trafficking offense, or simply doesn’t get tested at all.  In any of these scenarios, and experienced drug crimes lawyer will move to have your charges dismissed.


In the State of Florida, there are two types of entrapment defenses: subjective and objective.

          Subjective Entrapment

To establish a subjective entrapment defense, a drug crimes lawyer would need to establish that law enforcement induced their client to commit an offense that they were not otherwise predisposed to commit.  Pursuant to Florida Statute §777.201, the accused must establish the following elements by the greater weight of the evidence:

  1. the accused was induced or encouraged by law enforcement or a law enforcement agent (such as a confidential informant) to engage in criminal conduct in order for law enforcement to obtain evidence of the commission of a crime;
  2. the accused engaged in such criminal conduct as a direct result of law enforcement inducement or encouragement;
  3. the person who induced or encouraged the accused was a law enforcement officer or a person engaged in cooperating with or acting as an agent of a law enforcement officer;
  4. the person who induced or encouraged the accused employed methods of persuasion or inducement so as to create a substantial risk that the crime would be committed by a person other than the one who was ready to commit it; and
  5. the accused was not a person ready to commit the crime.

Once the Court finds that the defense has met their burden, the burden shifts to the State to prove beyond a reasonable doubt that the accused was predisposed to commit the alleged crime and that the accused’s predisposition to commit the crime existed prior to and independent of the inducement or encouragement by law enforcement. 

           Objective Entrapment

Objective entrapment is applied in cases involving egregious law enforcement conduct and is evaluated under the due process provision of the Florida Constitution. The defense of objective entrapment requires reviewing the totality of the circumstances in order to ascertain whether police conduct offends canons of decency and fairness.

In cases where these defenses are not available, other options that can be explored include drug court and pre-trial diversion.

Drug Court

Most jurisdictions offer drug court programs aimed at rehabilitation of the offender.  These programs typically range from 7 – 18 months.  In order to be deemed eligible to participate in a drug court program, the offender must meet the following criteria: (1) must have a serious drug/alcohol problem; (2) be a non-violent offender; (3) not previously terminated from a drug court program; and (4) be charged with a felony drug related charge (possession, purchase, or obtaining prescriptions by fraud).

Pre-Trial Diversion

This program is offered for first-time offenders who charged with possession of small amount of drugs.  The pre-trial diversion program requires the offender to complete drug treatment, undergo random drug screens, complete community service hours, and pay a fine.  Successful completion of a pre-trial diversion program will result in the criminal charges being dismissed.

Free Case Evaluation

If you or a loved one has been charged with a drug offense, it is important to seek the advice of a competent and skilled criminal defense lawyer.  We will be able to evaluate your case and look for defenses that may not be obvious to you.  Call today at 407-473-1233 to schedule your free and confidential case review. 

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