DRUG TRAFFICKING

POSSESSION WITH INTENT

SIMPLE POSSESSION

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When analyzing a drug case, one must ask three preliminary questions:

1. What type of drug does the case concern?
2. What was the quantity of the drug in question?
3. What were the circumstances that led up to the defendant’s arrest?

Drug cases come in three different varieties – Trafficking, Possession with Intent, and Simple Possession. If you are accused of manufacturing, buying, selling, or delivering drugs, you may be charged with Possession with Intent. If you are accused of nothing more than possession, then you may be charged with either simple possession or trafficking – depending on the quantity of drugs you had in your possession.

The following illustrates the difference between the three types of charges in Florida state court:

Trafficking – 1st Degree Felony, punishable by up to 30 years in prison.

Possession with Intent – 2nd Degree Felony, punishable by up to 15 years in prison.

Simple Possession – 3rd Degree Felony, punishable by up to 5 years in prison.

It should be noted that only possession of marijuana and certain non-narcotic prescription drugs are misdemeanors.

What am I facing as a first time offender?

Even first time offenders are subject to serious prison sentences. While most defendants charged with simple possession are given probation, those charged with trafficking are subject to very strict minimum mandatory sentences, both in State and Federal courts. The extent of a minimum mandatory sentence will depend on the quantity of the drugs you allegedly possessed. The greater the quantity of drugs, the longer the minimum mandatory sentence. Additionally, one may be subjected to minimum mandatory sentencing for Possession with Intent of the offense was allegedly committed within 1000 feet of a school, a day care center, or a convenience store, among others.

How do you defend against a drug offense?

Illegal Stops

A defense lawyer working on a drug case must first determine how the police came to be involved with the defendant. In drug cases, the police are usually involved as a result of a traffic stop or information provided by a confidential informant. In the case of international drug trafficking, the U.S. Coast Guard may have boarded your vessel to conduct a safety inspection or due to some other maritime violation, such as speeding in a no-wake zone.

A law enforcement officer may temporarily detain a person if the officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. In order not to violate a citizen's Fourth Amendment rights, such investigatory stops require a well founded, “articulable suspicion” of criminal activity. Mere suspicion is not enough to support a stop.

If the police are unable to explain why they thought you had committed, were committing, or were about to commit a crime, then all the evidence that was discovered as a result of the illegal stop must be thrown out. A good defense lawyer is able to get this evidence thrown out by filing a motion to suppress. Once the evidence in a case is thrown out because the stop was illegal, the prosecutor may be forced to drop the entire case for lack of evidence.

Illegally Obtained Statements or Confessions

In other cases, the police illegally obtain a statement or confession from a defendant. This occurs when a defendant makes statements to police while in custody without having first been advised of his or her Miranda rights.

Even though the U.S. Constitution endows every person in the United States with the right to refuse questioning and the right to an attorney, police often times ignore a person’s rights or make mistakes because they were not careful.

In other instances, police will trick a person into giving a statement. Surprisingly, this is entirely lawful. Remember, the police are not on your side. They are there to make a case. However, you do not have any duty to help them, provide them with information, or make any other statement at all.

While the law allows them to lie to you, you CANNOT lie to them. Lying to the police constitutes obstruction. The Constitution enables you to remain silent and nothing more.

Regardless, when the police obtain incriminating statements from a defendant, while in custody, but without first giving the Miranda warnings, those statements become inadmissible and cannot be used by the prosecution.

Sometimes, the prosecution’s entire case hinges on inadmissible statements. When these situations occur, a well written motion to suppress can result in an entire case being dropped.

Illegal Search and Seizure

Aside from attacking illegal stops or illegally obtained statements, a good defense lawyer is also able to attack illegal searches. The police are only allowed to enter private property under one of the following situations:

1. Exigent circumstances exist, such as an emergency.
2. Valid consent to enter is given.
3. The police have a valid search warrant.

If there is no exigency, and if you do not give them permission, and they do not have a valid search warrant, the police are NOT allowed to enter or search your property at all.

When the police illegally enter private property any search they conduct is illegal and none of the evidence they collect may be used in trial. In these situations, a good defense lawyer will file a motion to suppress. Once illegally seized evidence is suppressed by a judge, the prosecution may be forced to drop or reduce charges for lack of evidence.

Am I eligible for Drug Court?

Over the years, society’s view of drug addiction has changed dramatically. Drug addiction is now viewed as a medical/psychological problem as opposed to criminal conduct. In fact, most jurisdictions recognize that traditional prosecution of minor drug offenses has done nothing to stop or prevent drug abuse. As a result, the courts have created special judicial divisions that only handle drug possession cases. In these special divisions, offenders are given the opportunity to seek help instead of facing criminal prosecution.

Since treatment and drug screening are court ordered, failure to comply with the rules and regulations of Drug Court may result in contempt of court. If you are found in contempt, a judge may order you to serve a period of time in jail or may throw you out of the program to face prosecution before a regular criminal judge.

Drug Court can be very challenging and participants are expected to work hard at their recovery. This includes regular drug screening, attendance at counseling sessions, group therapy, and AA/NA meetings.

The entire program lasts anywhere from a year to a year and a half. If you successfully complete the program, the judge will completely dismiss the charges pending against you and you will not have a criminal record for that particular case.

While some people may find Drug Court very challenging, it is a great opportunity to help oneself with a serious legal problem as well as any personal issues one may have with substance abuse.

Many of our clients have taken the Drug Court challenge and have reaped tremendous personal rewards on top of having their case dismissed. For this reason, we highly recommend participation in the program.