The defenses for drug crime cases are often complex. Your entire case could be won or lost depending on whether a viable motion to suppress evidence is filed and litigated.
Alternatively, a motion to dismiss can be filed in your case if the prosecution does not have sufficient evidence to prove that you actually or constructively possessed the controlled substance.
Other defenses exist in drug cases including an entrapment defense, a prescription defense, a legal disposal defense, and a drug overdose immunity statute.
An experienced criminal defense attorney can help you determine the best way to fight your charges your drug charges.
Attorney for Drug Crimes Prosecuted in Tampa, FL
After an arrest for a drug offense, it is important to speak with an attorney experienced in fighting drug crimes in Tampa, Hillsborough County, FL.
Our attorneys work hard to uncover mistakes made by law enforcement, undercover officers, and confidential informants in drug crime cases. We are experienced in filing motions to suppress and motions to dismiss drug charges.
Our attorneys have been successful in asserting complicated defenses in these cases including the entrapment defense when an undercover officer or undercover officer encouraged a person to commit a crime you were not predisposed to commit.
If you have been arrested for a drug crime in the Tampa Bay area, including Hillsborough County, Pinellas County, Pasco County, Hernando County or Polk County, then contact an experienced attorney at the Sammis Law Firm.
By focusing on criminal defense and serious drug crimes, we pay particular attention to recent changes in the law and unique arguments that apply to these types of cases. We are also familiar with the requirements for drug court programs in Tampa, FL.
Call (813) 250-0500.
New Rules on Suspending a Driver’s License After a Drug Conviction
Update: §322.055 now requires a six (6) month suspension of a driver’s license after a drug conviction for any conviction occcuring on or after October 1, 2019. Even more importantly, the judge can now order the business purpose only (BPO) permit right away if it finds “compelling circumstance” to warrant an exception.
Of course, if you avoid a “conviction” with a withhold of adjudication or getting the charges dropped or dismissed, then you don’t have to worry about a driver’s license suspension under Section 322.055.
For convictions prior to October 1, 2019, Florida Statute § 322.055(1), required the court to:
“direct the department to revoke the driver’s license or driving privilege of the person. The period of such revocation shall be 1 year or until the person is evaluated for and, if deemed necessary by the evaluating agency, completes a drug treatment and rehabilitation program . . .
However, the court may, in its sound discretion, direct the department to issue a license for driving privileges restricted to business or employment purposes only, as defined by s. 322.271, if the person is otherwise qualified for such a license.”
The court is not authorized to suspend a driver’s license as part of probation under section 948.01(3)(a) and 322.055(1). Section 322.055(1) required an individual to go through a rehabilitation program before having his license reinstated unless the court orders DHSMV to issue a BPO license (as defined in Section 322. 271). Prior to obtaining the BPO license, section 322.271 required an individual to take a substance abuse education class. Department of Highway Safety and Motor Vehicles v. Litsch, 664 So.2d 25 (Fla. 4th DCA 1995).
Types of Drug Crimes in Florida
We represent individuals charged with a wide variety of drug charges, including:
- Marijuana Crimes
- Possession of Drug Paraphernalia
- Possession with Intent to Sell or Distribute
- Drug Trafficking
- Driving While Impaired by Drugs (DUI)
- Possession of a “New Drug” with Intent to Sell
Drug crimes can be charged as a first, second, or third degree felony.
Types of Controlled Substances under Florida Law
The attorneys at Sammis Law Firm in Tampa, FL, represent clients charged with a wide variety of possession, sale, or trafficking offenses including:
- Marijuana / Cannabis / Pot / Weed
- Possession of Drug Paraphernalia
- Street Drugs, including:
- Methamphetamine / Meth / Crystal Meth
- PCP (Phencyclidine)
- Lysergic Acid Diethylamide (LSD)
- Psilocybin (Mushrooms)
- MDMA / XTC (Ecstasy)
- Prescription Drug Abuse (which can sometimes be charged as “drug trafficking” even though only one bottle of prescription medication is involved), including:
- OxyContin / Oxycodone
- Demerol / Meperidine
- Vicodin / Hydrocodone
- Valium / Diazepam
- Xanax / Alprazolam
- Ritalin / Adderall / Methylphenidate / Amphetamine
- Opioid / Fentanyl / Tramadol
Penalties for Drug Crimes in Florida
Chapter 893, F.S., contains different provisions criminalizing the possession, sale, purchase, manufacture, and delivery of controlled substances. The severity of the penalty for a violation of the provisions found in s. 893.13, F.S., depends on:
- the schedule in which the controlled substance is listed;
- the quantity of the controlled substance involved; or
- the location where the violation occurs.
Section 893.135, F.S., provides penalties for drug trafficking offenses which include the minimum mandatory sentences and fines.
Those penalties for drug trafficking crimes increase in severity as the quantity of the controlled substance involved increases.
If you are convicted of a drug crime in Florida, Florida Statute § 322.055 now requires a six (6) month suspension for any conviction occurring after October 1, 2019.
· Credibility of Informants and Undercover Officers
· Motions to Suppress
· Element of the Offense – Proving Possession
· Common Factual Situations – Drugs Found in a Vehicle
· What to do when your vehicle is stopped
Drug cases often revolve around the credibility of confidential informants who are working with undercover detectives to set up other individuals to commit drug crimes.
Confidential informants are used routinely for sale and delivery of cocaine cases, and for serious drug trafficking cases in the Tampa Bay area, including Hillsborough County, Pinellas County, and Pasco County.
The key to winning these cases is uncovering mistakes made by law enforcement, inconsistencies in the testimony of various witnesses, and the physical evidence such as audiotaped or videotaped statements.
In many cases, confidential informants are desperate to set up another individual to lessen their punishment for their criminal misconduct. Conducting an exhaustive investigation to exploit this desperation is an important part of winning a drug case.
Additionally, the entrapment defense may be available in any case in which a confidential informant or undercover officer encouraged the defendant to commit the crime charged.
The confidential informant, usually an individual that already has a long criminal history or pending charges, has an incredible motive to lie, plant evidence, and make false accusations.
In some cases, the confidential informant (CI) will set up other individuals in exchange for cash payments from law enforcement. These financial incentives can also call the confidential informant’s credibility into question.
The detectives, special agents, or law enforcement officers working with the confidential informants may also be engaged in questionable activities, take shortcuts that violate the law, or do other things to cause their credibility to be questioned. Shortcuts taken by law enforcement can cause the entire case to be dismissed.
A criminal defense attorney for drug crimes can find and exploit reasonable doubts that may exist in your case because of credibility issues with the confidential informant, detectives, agents or undercover officers.
The Fourth Amendment of the United States Constitution protects all individuals against unreasonable searches and seizures. Police officers all too often ignore these principles when conducting investigations. When the police seize evidence illegally, it is more than just a “technicality” — it reaches to the very validity of the arrest.
Without constitutional requirements that protect the rights of citizens, the freedoms that all law-abiding citizens enjoy would be jeopardized. Hiring an experienced Drug Crimes Defense Attorney to contest the legality of each step taken by the police is critical to your defense.
If your case involves a search of your person, vehicle or home, we will research every aspect of the case to have the illegally obtained evidence thrown out. Evidence obtained during the execution of a search warrant or arrest warrant can also be contested.
Filing and litigating motions to suppress are particularly important in drug cases, particularly those in which the charge is unlawful possession. In those cases, the main issue that can be raised by the defense is whether the law enforcement officers obtained the drugs lawfully.
In these cases, there is often little point in proceeding with a trial if there is no factual dispute and if the search and seizure issue has been resolved unfavorably to the defendant in the trial court.
Instead, the more practical approach would be to enter a nolo contendere plea reserving the right to appeal the denial of the pretrial motion to suppress. See Philip J. Padovano, 2 Fla. Prac., Appellate Practice § 27:17 (2016 ed.)(emphasis added).
The word “possession” has a particular meaning under the law. Possession of a drug does not require ownership. Possession of a drug is not necessarily exclusive to only one person (in other words, two people can “possess” the same item at the same time). Essentially, possession means to exercise control over something. Possession can be actual or constructive.
“Actual possession” means to be in direct physical contact with the substance, such as holding drug paraphernalia in your hand, having cocaine in your pocket, or carrying marijuana in a purse on your shoulder.
“Constructive possession” means that you are not actually in physical contact with the substance, and must be proven by showing that the defendant:
- Knew of the presence of the drugs;
- Knew of the illicit nature of the drugs; and
- Had dominion or control over the drugs.
Knowledge of the presence of the drug can be inferred from circumstantial evidence, including possession or ownership of the premises or vehicle where the item was found.
However, if more than one person jointly occupies the premises or vehicle where the drugs are found, then the knowledge of the accused will not be inferred from his possession of the premises or vehicle, but rather must be established by independent proof.
Independent proof can include:
- Statements of the defendant that he knew about the presence of the drugs; or
- The fact that the drugs were in plain view.
The common factual situation occurs when two people are in a vehicle – the driver and a passenger. The vehicle is stopped for speeding. The officer asks the occupants to exit the vehicle and conducts a search. On the floorboard, under the back passenger seat, the office locates a baggy of drugs hidden in a brown paper bag (not in plain view).
The driver and passenger either refuse to answer any questions or deny knowing that the drugs were in the vehicle. Under this scenario, if the driver or passenger were arrested for possession of the controlled substance, either would probably win a motion to dismiss.
Under these facts, there is insufficient evidence to determine who possessed the controlled substance since it was found in a jointly occupied vehicle, it was not in plain view, and there were no statements by either party admitting to knowledge of the contraband.
A Motion to Dismiss is a written document that is sworn to by the defendant that recites the facts of the case as alleged by the police (assuming those facts are true) and shows that although the facts of the case are not in dispute, those facts do not prove a “prima facie” case of guilt.
Of course, most police officers understand that insufficient evidence exists under this scenario. The police are trained to gather additional evidence in this type of situation.
First, the police will try and get one or both of the parties to make a statement admitting that they knew the drugs were in the car. The police do this in many ways. First, the police may threaten to arrest the other occupant of the vehicle unless someone gives a confession.
Secondly, the police may promise to “go easier” on everyone if someone admits knowledge or ownership of the drugs. Third, the police may accuse the driver of more serious offenses such as selling drugs, to get the driver to say, “No, that is for personal use. I’m not a drug dealer.” Once the driver is tricked into talking about the case, the driver has just admitted knowledge and ownership of the drugs.
The best thing to do when your vehicle is stopped by the police is to be as polite and cooperative as possible. Once you determine that the police are interested in more than just issuing you a citation, keep the following in mind:
- Do not exit the vehicle until asked to do so. Once you are asked to exit the vehicle, the officers are interested in more than just issuing a civil traffic ticket.
- Politely decline to make any statement or consent to any search of your person or property or perform any test or exercise of your sobriety.
- Tell the officer politely that you are invoking your rights. The only thing that you need to say to invoke your rights is “I am invoking my right to remain silent. I want my attorney to be present for any questioning. Am I free to leave?”
- Under the 5th Amendment and Miranda v. Arizona, your rights include the following:
- the right to remain silent;
- the right to have an attorney present before and during any questioning;
- the right to refuse to consent to any search of your person, belongings, vehicle, or residence; and
- the right to refuse to consent to take any sobriety exercises, the “HGN” eye test, handheld breath test, or other breath or chemical test.
Do not talk to the officer about whether any items belongs to you or not. Simply continue to invoke your right to remain silent. If the officer continues to question you, know that the officer is violating your right to remain silent. No matter what the officer says, continue to remain silent.
If you spontaneously start talking, even after invoking your rights, that information can be used against you. Of course, your refusal to answer all of the officer’s questions may mean that the officer will arrest you. However, if the officer has grounds to arrest you, then it is unlikely that anything you say will change the officer’s mind.
Usually, the officer continues the questioning because the officer does not have enough evidence to make an arrest without your confession or admissions. So by continuing to remain silent, you are not giving the officer that one additional piece of evidence needed to make the arrest.
Do not physically resist the officer in any manner, because doing so will result in an additional charge. Be as polite and respectful as possible.
If you are not under arrest or detention, you are free to end the encounter with the officer and leave. For instance, once you receive a traffic citation, you should be free to end the contact with the police.
Politely ask the officer if you are free to go. If the officer does not have “probable cause” to continue to detain you, then the officer will let you go. If the officer continues to detain you after you ask to leave, you may have grounds to suppress any evidence gathered after that.
The only information you should give the officer is information concerning your identity (name, date of birth, address, etc.), driver’s license, proof of insurance, and vehicle registration. Make sure that information is easily accessible so you can hand it to the officer if it is requested.
Drug Overdose Immunity under Section 893.21(2)
In some cases, a person charged with a drug crime can file a motion to dismiss the criminal charge because of the immunity provision of Section 893.21, Florida Statutes, which provides:
Florida Statute Section 893.21 Drug-related overdoses; medical assistance; immunity from prosecution.—
The immunity provisions of the drug overdose statute only apply when the defendant was experiencing a drug overdose and needed medical assistance.
The statute gives immunity to the person suffering from the overdose and the person who seeks medical assistance on their behalf. The statute does not define the word “drug-related overdose.”
Prescription Defenses to Florida Drug Crimes
Under Florida law, it is unlawful for any person to be in actual or constructive possession of a controlled substance unless the substance was “lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner….” Thus, having a valid prescription is a defense to possession of a controlled substance. See §§ 499.03(1), 893.13(6)(a), Fla. Stat. (2012);
For this reason, having a valid prescription is a defense to possession of a controlled substance. See §§ 499.03(1), 893.13(6)(a), Fla. Stat. (2012); O’Hara v. State, 964 So.2d 839, 840–41 (Fla. 2d DCA 2007).
Read more about the prescription drug defense. Call us to find out more about how the attorneys at the Sammis Law Firm can file a motion to dismiss in a case charging possession of a controlled substance or trafficking when the person in possession had a valid prescription for the drugs possessed.
Florida law also includes an affirmative defense if you took possession of the controlled substance only for the purpose of legally disposing of it or turning it over to law enforcement. Click here to read more about Florida’s drug defense for legal disposal.
Florida’s 911 Good Samaritan Act
In 2012, the Florida Legislature enacted the “911 Good Samaritan Act.” The act was created to encourage people to seek medical assistance for persons having a drug overdose.
The 911 Good Samaritan Act, codified in s. 893.21, F.S., prohibits a person from being charged, prosecuted, or penalized for possession of a controlled substance with evidence obtained as the result of the person’s seeking medical assistance due to an overdose.
For the immunity to apply, Florida’s 911 Good Samaritan Act requires a person seeking help for another to act in good faith. The statutory language specifies that the act does not provide a basis for the suppression of evidence in other prosecutions.
The scope of the protection is limited by the fact that the criminal conduct protected by the act is the “possession of a controlled substance.” The law is unclear about whether drug trafficking crimes would also be covered. For example, if a person is in possession of 28 grams of cocaine, the crime can be charged as trafficking in cocaine under Section 893.135(1)(b), F.S.
In addition to the 911 Good Samaritan Act, the Florida legislature has also enacted Section 381.887, F.S., which grants civil immunity to a person who administers a drug such as naloxone hydrochloride to block the effects of opioids during an overdose.
Section 893.13 Drug Crimes in Florida – Visit the website of the Florida Senate to find Florida Statutes under Chapter 983 for drug abuse prevention and control. Section 893.13 describes prohibited acts and penalties related to selling, manufacturing, delivering or possessing with intent to sell any controlled substance.
Finding a Lawyer for Drug Crimes in Tampa, FL
If you have been arrested for any drug crime in Hillsborough County, Pinellas County, Pasco County, Polk County or the surrounding areas through Tampa Bay, then contact an experienced criminal defense attorney in Tampa to discuss your case.
We represent clients charged with Possession of Controlled Substances under F.S. 893.13(6)(a) and related charges for possession with intent to sell, dealing drugs, and trafficking in drugs.
Whether your case is assigned to drug court or a regular trial division, we can help you understand all of your options. Talk with us about important defenses that might apply to your case. We can help you decide whether the evidence in your case should be suppressed because of an illegal search.
If your case involves a sting operation by an undercover officer or a confidential informant, then call us to find out whether an entrapment defense can be asserted. Let us put our experience to work for you.
Call (813) 250-0500 to speak with an experienced attorney for narcotic crimes in Tampa.
This article was updated by Jason D. Sammis on Friday, October 11, 2019.