Marijuana Possession

Have you been arrested on charges of possession of marijuana in Florida? Don’t take these charges lightly, as there may be serious consequences for a Possession charge conviction. Criminal defense attorney John Guidry has defended thousands of people accused of possession crimes since 1993, in central Florida counties ranging from Orange, Seminole, and Osceola County. To discuss your options following a drug arrest with an Orlando marijuana possession lawyer, contact us.

Possession of Cannabis/Marijuana charges carry with them serious consequences if convicted. For example, even the smallest amount of cannabis/marijuana, if convicted, can result in loss of your driver’s license for one year, and sometimes seizure of your vehicle or personal property (most commonly, the property seized is cash on hand, especially if there is more than $700). Furthermore, a drug conviction may disqualify you for federal student loans — even a misdemeanor drug offense. In some cases, a withhold of adjudication is treated by the federal government as a conviction, so even that may prevent a student from receiving student loans (this is rare, so don’t worry).

When arrested and charged with a drug possession crime, retaining criminal defense lawyer John Guidry from the earliest point possible can be the critical turning point for defending your case. As an experienced defense firm, we will be able to dissect the facts of your arrest and examine them for evidence of illegal search and seizure, mistaken identity, and any other affirmative defenses which may negate the charges against you.

Criminal defense attorney John Guidry also examines the issue of the State’s burden of proving a substance was, indeed, Cannabis, when a client is arrested and charged with Possession of Cannabis/Marijuana. Many officers use what is referred to as a “hit kit”, a portable drug testing kit known as the Duquenois-Levine Reagent. It tests for marijuana, hashish, hash oil, THC, and residues of THC in smoking paraphernalia.

If you were charged with felony Possession of Oxycodone, for example, Florida law requires the State to have a forensic laboratory analysis of the pill, proving that the pill is, in fact, oxycodone. But, Florida law does not require the State to enter official lab results into evidence to convict on misdemeanor Drug Possession or Drug Paraphernalia charges, mere testimony from the arresting officer regarding their personal observations are deemed sufficient. If our Constitution meant anything, you would think that the ‘proof’ required in a criminal case would be the same, regardless of whether or not the charge was a misdemeanor carrying up to one year in jail, or a felony charge. Unfortunately, Florida courts do not agree, and thus there are two separate standards of proof in possession of cannabis cases, depending upon the amount of marijuana recovered. If there’s a felony amount (over 20 grams), a lab test may be required to prove the substance is, in fact, marijuana. If it’s a misdemeanor amount of marijuana, no such lab results are required.

“Possession of Cannabis – Under 20 Grams” is designated by the Florida Legislature as a 1st degree misdemeanor carrying a maximum of 365 days in the county Jail and up to a $1,000.00 fine. Since 1993, John has defended many clients who are charged with the misdemeanor offense of “Possession of Marijuana – Under 20 Grams.” Often clients are shocked to hear that what appeared to be a “simple possession charge” is really a charge that can carry heavy court sanctions. For example, prosecutors will typically seek a sentence that includes a substance abuse evaluation and counseling or treatment, random drug testing, coupled with a mandatory one-year driver’s license suspension upon conviction.

A big problem lately involves repeat offenders. Even though we’ve seen sentences on cannabis possession lighten a bit since medical marijuana became legal, we still have quite a few judges who are running out of patience with folks who have a couple of prior possession charges. Most Orange County judges are fairly accommodating, but some judges in Seminole County and Osceola County are a bit harsh on these cases (don’t worry, we know who they are and we adjust our defense accordingly).

Bottom line is, facing a “simple” Possession of Marijuana is often not as simple as the name of the offense suggests, having an experienced possession defense attorney on your side at the earliest possible time can help make the difference in the outcome of your case. Now, let’s examine the different types of possession.

The weight of the marijuana plays a key role in determining the level of offense. If the weight comes in under 20 grams, lucky you, the charge is only a misdemeanor, over 20 grams, a felony. If an accused is charged with a felony possession of cannabis over 20 grams, it’s sometimes advisable to file a Motion to Re-Weigh evidence. Such a motion grants a defense expert permission to enter the law enforcement evidence locker to independently weigh the evidence (in close cases, why trust the government?). However, a simple misdemeanor cannabis under 20 grams can also be enhanced to a felony possession with intent to sell or deliver when the state can prove that the packaging of the cannabis was such that it would not be deemed for ‘personal use’. As you might expect, marijuana that weighs in over 25 pounds constitutes a Trafficking in Cannabis charge, carrying a three year minimum mandatory sentence.

Keep in mind that “ownership” of the cannabis/marijuana has little to no bearing on the question of “possession.” The drugs may not be “your” drugs, they may be your friend’s, neighbor’s, or a stranger’s, but that has no bearing on the charge of Possession. Florida’s criminal drug laws do not take into account whether the drugs actually belonged to you or another person. The only concern is whether you were in “possession” of the item. For purposes of Florida law, possession of marijuana can be one of two types: “actual” or “constructive.”

“Actual” possession refers to a situation where an individual has an illegal drug on their person. For example, someone who has a baggie of marijuana in their pocket would be in “actual” possession of the marijuana. Believe it or not, actual possession is not always enough to convict, especially if the possession is only temporary such that a person does not have dominion and control of the weed. Thus, if a few Orlando citizens are merely passing a joint around amongst friends, that doesn’t mean everyone is guilty of possession of cannabis.

On the other hand, a person can also be in “constructive” possession of a drug. Constructive possession refers to a situation where a person has knowledge of the item and the ability to access the item. Consider the following scenario: An individual is stopped while driving a car and law enforcement then searches his vehicle. The search of the vehicle reveals marijuana in the glove box or center console. Although the driver wasn’t “holding” the marijuana, Florida law still permits the prosecutor to pursue a conviction for possession of marijuana. This concept is commonly referred to in the law as having the ability to exercise “dominion and control.” That is, the prosecutor attempts to prove that the driver had knowledge of the item’s whereabouts, as well as, the ability to have accessed the drug. This may not be enough to sustain a conviction, and criminal defense attorney John Guidry will investigate such facts and file all appropriate motions when constructive possession is an issue.

Let me break down for you a typical constructive possession case. First off, as anyone who has been practicing criminal defense for a while can tell you, most marijuana cases come from vehicle searches. If everyone stopped carrying weed in their car–no one would be arrested for possession of cannabis. Seriously, its just that common.

Now, most vehicle searches start with a police officer smelling the odor of cannabis. It is rather convenient that police can search your car on such an unverifiable allegation as “I smell weed”, but its legal. Barely. And, this supposed odor grants the police authority to search your entire vehicle, and every occupant. If the car has multiple occupants, the rules governing proof of “constructive possession” apply.

A decent example of a typical constructive possession scenario can be found in Williams v. State, 110 So. 3d 59 (Fla. 2d DCA 2013). Williams was pulled over for bad driving, and began to act extremely nervous as the cops came to speak to her. And, as the cops approached the car, they immediately smelled marijuana. Williams had two other passengers in her car. The police searched the car and discovered a few digital scales, and over a pound of fresh marijuana. Williams was convicted of possession of cannabis with intent to sell or deliver (based upon the quantity, and scales).

But, remember what we said about constructive possession–there must be independent evidence that links Ms. Williams to the possession. Sure, she was driving. Sure, she rented the car. Sure, she was acting nervous. Sure, she could probably smell the weed, just like the cops smelled it. But, that’s never enough to prove constructive possession! You’ve got to have independent evidence, like fingerprints, for example. Just driving friends around who possess weed is not enough to convict. For a more detailed analysis of this case, read my article “Bad Driving Leads to Drug Charges“.

Medical marijuana is now legal in most of the 50 states, so Florida joins the likes of California, Arizona, Alaska, Colorado, Washington DC, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington (I don’t want to list them all, and this list grows every couple of months). Having a valid prescription is a defense to a possession of Xanax charge, but, what happens when that prescription drug is marijuana? Will Florida courts extend the prescription defense to medical marijuana? Let’s hope so. It’s an issue that has yet to be addressed by Florida courts, but for a more detailed analysis, check out my article “Tell Grandma to Leave Her Prescriptions At Home When Visiting Orlando“.

Drug possession charges commonly stem from a search of a car, a person or a home, all sanctioned by tips conducted by law enforcement or through information gathered by a confidential informant working for law enforcement. When the behavior of a confidential informant crosses the line, a drug charge may be dismissed based upon a theory of entrapment. Another important issue to consider is whether or not the initial search was lawful. If the stop or search was illegal, the evidence gained from that search (i.e., the drugs) becomes inadmissible in court. Translation: case dropped. case dismissed.

The inadmissibility of evidence found via an illegal search is known as the “fruits of the poisonous tree” doctrine. Simple put, if the search is illegal (i.e. the tree is poisoned), all the evidence flowing from the search is tainted (i.e., the fruit is also poison) and cannot be used in court. A skilled and experienced criminal defense attorney (such as myself, of course!) can examine your case to evaluate the lawfulness of any search conducted by law enforcement. If the search is suspect, a motion will be filled to “suppress” the evidence that flowed from the unlawful search. Winning such a motion can be highly beneficial, as it basically results in preventing the prosecutor from moving forward with the case. For more details on illegal searches, check out my article “Leaving Your Pipe Out Where the Police Can See It…“.

So, what’s a throw down case?

Well, imagine the cops finding weed on the ground around a group of people, who are they going to charge? There is really no legal way of charging someone with possession of the stuff on the ground. But, if the police witness somebody “throw down” the marijuana, they can arrest the person that threw the drugs down. These cases present their own issues of constructive possession, among other things. Sometimes, you can have multiple individuals throwing down multiple baggies. Now what? How do you sort out which drugs go to which person? This issue must be resolved, or the case can be dismissed. Yes, there is a real life case of just such an instance, and you can find the details in my article “Throw Down Cases are Tough to Prove“.

The law governing Possession of Marijuana is shrouded with nuances and distinctions that can change the outcome of your case. It is vital that you seek the advice of John Guidry, an experienced Orlando marijuana possession lawyer at the earliest date possible. Call our office today for a free initial consultation. Together we can discuss the unique facts of your case and review all of your options to decide on your best course of action.