Possession of cocaine is a third-degree felony in Florida under Florida Statute 893.13(6)(a), punishable by up to five years in prison and a $5,000 fine. That grade does not change because it was your first time, because the amount was small, or because someone handed it to you in a bar.
Whether you’re a first-time offender or you have prior drug arrests, being arrested for possession will likely leave you with many questions. Keep reading to learn more about the steps to take immediately after an arrest, potential defense strategies available to you, and more.
Understanding Cocaine Possession Laws
The law doesn’t care if you were in a bar, club, or sitting in your car; cocaine possession is illegal. A possession charge turns on more than who was holding the bag. The State also has to prove the defendant knew the substance was there and had control over it, which is where most of these cases are won or lost.
Federal Cocaine Laws
Under federal law, cocaine is listed as a Schedule II controlled substance. Possession of any amount of cocaine is illegal, and penalties range from misdemeanors to felonies, depending on the amount of cocaine found and the person's criminal history.
Under 21 U.S.C. 844(a), a first conviction for simple possession carries up to one year in prison and a fine of at least $1,000. A second conviction carries 15 days to 2 years and a fine of at least $2,500, and a third or later conviction carries 90 days to 3 years and a fine of at least $5,000. Cocaine possession in Broward and Palm Beach counties is almost always charged in state court, not federal court.
State Cocaine Laws
In Florida, possession of cocaine is a third-degree felony under Florida Statute 893.13(6)(a), carrying up to five years in prison and a $5,000 fine. A second possession charge is still a third-degree felony. The increase comes from sentencing instead: a defendant with the required prior convictions can be sentenced as a habitual felony offender under Florida Statute 775.084(4)(a)3., which raises the maximum on a third-degree felony to 10 years. Possession of 28 grams or more is a different offense altogether, trafficking in cocaine under Florida Statute 893.135(1)(b)1., a first-degree felony carrying a 3-year mandatory minimum and a $50,000 fine at the lowest weight tier.
However, if the possession is with the intent to sell, distribute, or manufacture it, the charge becomes a second-degree felony under Florida Statute 893.13(1)(a)1., which carries up to 15 years in prison and a $10,000 fine.
Simple vs. Constructive Cocaine Possession
Simple possession means someone knowingly carries cocaine or purposefully has it under their personal, physical control, such as in a pocket or purse. To be charged with simple possession, the person must know that they have the drug and that it’s illegal.
On the other hand, constructive possession is a broader term encompassing situations where a person has legal control over the drug, even if they don't have direct physical control. This can include cases where cocaine's found in a home, vehicle, business, or other property owned or rented by the person or in a hotel room where they're a guest.
Being near someone else's cocaine is not enough on its own. Under Brown v. State, 428 So. 2d 250 (Fla. 1983), where two or more people jointly occupy a car or a home and the cocaine is in plain view in their presence, that is enough to prove constructive possession against each of them. If the drug was hidden, the State needs separate proof that the particular defendant knew it was there and could control it.
Immediate Steps To Take After Being Arrested
Even if your gut tells you to panic, don't let the shock of an arrest prevent you from responding to the situation effectively. Immediately taking the necessary steps after being arrested can protect your rights and improve your chances of a favorable outcome in your case.
Invoke Your Right To Remain Silent
Under the Fifth Amendment of the U.S. Constitution, you have the right to remain silent and protect yourself from self-incrimination. Use this right to your advantage because anything you say during this time can be used against you in court.
By invoking your right to stay quiet, you’re taking an important first step in securing your legal position and ensuring you don’t inadvertently compromise your defense strategy.
Always provide truthful information about your identity and basic personal information, which can facilitate and expedite the arrest process. However, it’s important that you don't disclose any additional information without consulting legal counsel.
Seek Legal Representation
The Sixth Amendment gives anyone facing a criminal charge the right to a lawyer, and if you cannot afford one and the charge carries jail, the court appoints a public defender.
No matter the crime you’ve been charged with, it’s important to have a lawyer present during any questioning by law enforcement to protect your rights and interests.
A defense attorney can tell you what Florida Statute 893.13 requires the State to prove on the facts of your arrest, what the discovery in your case actually shows, and what happens at each court date.
Document The Details Of Your Arrest
As soon as possible, write down everything you remember about your arrest, including the officers' badge numbers, patrol car numbers, the agency they work for, and any other relevant details.
If there were witnesses present during your arrest, get their contact information. Their testimony may be valuable in supporting your case.
Possible Defense Strategies For Cocaine Possession Charges
With the right attorney, your legal counsel can use various strategies and techniques to challenge the charges and seek a favorable outcome. Remember that each case is unique, and understanding these defense strategies will help craft a customized plan to address your specific circumstances.
Challenging The Legality Of The Search And Seizure
If the police unlawfully searched and seized you in a nightclub or bar, you may be able to challenge the legality of their actions. The 4th Amendment of the U.S. Constitution protects citizens from unreasonable searches and seizures, which means that law enforcement must have probable cause or a warrant before conducting an investigation.
Simply dancing, drinking, and hanging out in a nightclub or bar doesn’t constitute probable cause for a search and seizure.
Disputing Control Or Knowledge Of The Cocaine
The prosecution must prove that the defendant had simple or constructive possession of the cocaine. Without this hard information, your lawyer may be able to dispute these claims.
For example, if someone drops a bag of cocaine near you and law enforcement sees you near it, that doesn’t necessarily mean you were in possession. An experienced criminal defense attorney can help defend against this charge by reviewing the evidence and arguing that you had no knowledge or control over the drugs.
Innocent Possession Or Operating Under Duress
Operating under duress claims that another person forced or coerced the defendant to possess the cocaine. For example, if someone threatens the defendant's life or the lives of their loved ones if they don't carry the drugs, the defendant could argue that they acted under duress.
Innocent possession, on the other hand, argues that the defendant had a legitimate reason for possessing the cocaine, such as intending to dispose of it or confiscate it from someone else. In these cases, the defendant must prove that they didn’t intend to maintain control of the drugs or use them for illegal purposes.
Arguing Police Misconduct
Police misconduct is inappropriate behavior by law enforcement during a drug investigation. If the officer planted evidence or used overly excessive force during the arrest, any evidence obtained during the violation may be deemed inadmissible in court.
Proving misconduct takes documents, not assertions: body camera and surveillance video, dispatch logs, the officer's written reports, and any prior complaints against that officer.
Exploring Alternative Consequence Options
When faced with a cocaine possession arrest, your lawyer may suggest alternative options to jail or fines. These alternatives can provide a more rehabilitative approach and help individuals reintegrate into society while addressing the root cause of their drug use.
Plea Bargains
If you’re guilty of cocaine possession, a plea bargain may be worth considering. It’s an agreement between the prosecutor and the defendant in which the defendant agrees to plead guilty in exchange for a lesser sentence.
For example, if you were arrested for cocaine possession but didn’t intend to distribute or sell the drug, a plea bargain could lead to a lesser sentence or probation in lieu of a severe prison term.
A plea is still a conviction, so before you accept one ask your attorney what it does to your criminal record, your driving privilege, and any professional license you hold.
Diversion Programs
Diversion lets a defendant complete treatment or education instead of taking a conviction. Florida's pretrial intervention program is set out in Florida Statute 948.08. Under section 948.08(2), a first offender, or a person previously convicted of no more than one nonviolent misdemeanor, who is charged with a misdemeanor or a third-degree felony is eligible, but only with the approval of the program administrator, the victim, the state attorney and the judge.
Some diversion programs also include drug treatment courts, which provide expedited participation in treatment for nonviolent offenders with substance abuse problems. Successful program completion may result in the charges being dropped or the sentence being reduced.
What a diversion program requires, and whether the state attorney in your county will agree to it, varies by circuit, so ask your attorney what the program in the county where you were arrested actually involves.
Call Weinstein Legal Team To Handle Your Drug Possession Charges
If you or someone you know has been arrested for cocaine possession, you need an experienced criminal defense attorney to handle the case. When fighting possession charges, time is of the essence, and having experienced representation from the start can make a big difference in the outcome of your case.
Don't fight your possession charges alone. Contact Weinstein Legal Team today to start your case file now.
