Friday, January 1, 2016

Cannabis/ Marijuana and Paraphernilia Possession

Despite the nationwide trend to decriminalize the possession of marijuana, Florida still has some of the toughest possession laws in the country. In Florida, marijuana is classified as a Schedule I controlled substance and there is no accepted medical use. The seriousness of charge you face depends on the amount of marijuana you are accused of possessing. For example, with less than 20 grams you will be charged with a misdemeanor and face up to 1 year in jail and $1,000 in fines. With more than 20 grams you face a felony and up to 5 years in prison and $5,000 in fines. Your driver's license will also be revoked upon conviction and you can become ineligible for some government employment and government assistance.
Proving Possession of Cannabis/ Marijuana
For a conviction, the prosecutor has to prove three elements: 
  1. The defendant possessed a certain substance;
  2. The substance was cannabis and
  3. The defendant had knowledge of the presence of the substance.
Note that the State is not required to prove that the defendant knew the substance he/she possessed was cannabis i.e. it's illegal nature. However, the lack of knowledge of the illegal/illicit nature of the substance is an affirmative defense that your attorney can raise. Also, Florida’s criminal drug laws do not take into account whether the drugs actually belonged to you or another person. Possession can be shown where:
  1. An individual has an illegal drug on their person. This is called active possession.
  2. A person has knowledge of the item and the ability to access the item. This concept is commonly referred to as having exercised “dominion and control” or constructive possession.
It is also illegal in Florida to possess drug paraphernalia. This includes objects store or use marijuana.
Defenses to Possession of Cannabis/ Marijuana
There are two major ways to fight a marijuana charge. The first is to attack the search or seizure that led to the discovery of the marijuana. If the stop or search was illegal it may lead to the evidence gained from that search becoming inadmissible in court. An attorney may argue:
  • Police lacked probable cause or reasonable suspicion to conduct a traffic stop;
  • Police lacked probable cause or reasonable suspicion to detain or arrest a defendant;
  • Cannabis or marijuana was not in “plain view;”
  • Invalid search warrant;
  • Invalid execution of a search warrant;
  • Invalid consent to a search;
  • Unlawful “pat down,” or “Terry” search;
  • Exceeding the scope of consent;
  • Miranda violations;
  • Violations of right to counsel;
  • Evidence tampering or destruction of evidence;
  • Any other illegal police activity
The second way is to attack the State’s evidence or to provide factual and affirmative defenses. These are more fact specific, but may include lack of knowledge, chain of custody or entrapment defenses. Even if a defendant made admissions to police, a lawyer can still help him/her avoid conviction through negotiating with the prosecution. If you or someone you know has been charged with possession of marijuana, call Jhenerr Hines at 813-815-0291.