Drug Trafficking

Trafficking in a Controlled Substance

There are so many different ways to wind up arrested on a ‘trafficking’ charge, each different drug carrying a different minimum mandatory prison sentence. The mandatory minimum prison sentences are dictated by the weight of the drug. Possess over 28 grams of cocaine, for example, and you have yourself a Trafficking in Cocaine >28 grams Under 200 grams charge. However, Cannabis can behave a bit differently, as possession of greater than 300 cannabis plants (regardless of their weight) constitutes a Trafficking in Cannabis charge.

Here are the basics for proving a trafficking case. Let’s use the popular charge of Trafficking in Cocaine > 28 grams. The state must prove four elements: (1) that the defendant knowingly purchased or possessed a certain substance, (2) the substance was cocaine, (3) the quantity was 28 grams or more, and (4) the defendant knew the substance was cocaine.

If it seems like a trafficking charge is just a trumped up possession of cocaine charge, you’re right. The problem is, the penalties are far more serious, and often times the amount of evidence, and the type of evidence, is far different than your typical possession charge. For example, recorded telephone conversations, confidential informants, phone records, and undercover agents can play a large role in a trafficking case, whereas you don’t see such evidence in a simple possession charge.

The minimum mandatory sentences listed below are actually eligible for gain time. Typically, min man prison sentences do not receive gain time, but that’s not the case for drug trafficking charges. Check out my article called “Gain Time on a Minimum Mandatory Sentence” for more information on this topic. Even though the law grants inmates gain time on trafficking minimum mandatory sentences, some inmates have had to file lawsuits against the prison system in order to force the issue. One of the best examples of just such a lawsuit can be found in Mastay v. McDonough, Florida Department of Corrections, 928 So. 2d 512 (Fla. 1st DCA 2006). In this case, the Department of Corrections denied Mastay gain time on his three year minimum mandatory sentence for trafficking in cocaine. Technically speaking, the prison was relying on statutory language found in section 893.135(3) stating that a prisoner under a minimum mandatory sentence is “not eligible for any form of discretionary early release, except pardon or executive clemency or conditional medical release.” However, the legislature specifically deleted a phrase from the law which states that such a person shall not be eligible for any form of gain time. The court in Mastay correctly held that all trafficking charges are eligible for gain time, but not discretionary release (yes, there is a difference). As a side note, the court points out that several minimum mandatory sentences do, actually, prohibit gain time. But, those statutes explicitly state such. The trafficking statute makes no such prohibition.

Minimum Mandatory Sentences

Prayers were answered in October of 2019 when the trafficking sentences for hydrocodone were reduced. Back in 2014, our legislature reduced the minimum mandatory sentences for trafficking in oxycodone. Here are the newer, improved, and less draconian guidelines:

For Trafficking in Hydrocodone, it takes a minimum of 28 grams to 50 grams to receive a 3-year mandatory minimum prison sentence and a $50,000 fine,

• more than 50 grams of hydrocodone, but less than 100 grams is a 7-year mandatory minimum sentence with a $100,000,
• 100 grams to 300 grams of hydrocodone carries a 15-year mandatory minimum prison term plus a $500,000 fine, and finally,
• 200 grams to 30 kilograms of hydrocodone is a 25-year mandatory minimum prison term, plus a $750,000 fine.

The punishment for Trafficking in Oxycodone has decreased as well, as of July 1, 2014, the new guidelines are:

• 7 grams to 14 grams of oxycodone caries a 3-year mandatory minimum prison sentence, plus a $50,000 fine,
• 14 grams to 25 grams of oxycodone carries a 7-year mandatory minimum prison sentence and a $100,000 fine,
• 25 grams to 100 grams of oxycodone carries a 15-year mandatory minimum prison sentence, plus a $500,000 fine, and finally,
• 100 grams to 30 kilograms of oxycodone carries a 25-year mandatory minimum prison sentence, and a $750,000.

Here’s an example of the minimum mandatory prison sentences for Trafficking in Heroin: if you are caught with:

1. 4 grams or more, but less than 14 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 3 years, and the defendant shall be ordered to pay a fine of $50,000.
2. 14 grams or more, but less than 28 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 years, and the defendant shall be ordered to pay a fine of $100,000.
3. 28 grams or more, but less than 30 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of 25 calendar years and pay a fine of $500,000.

Trafficking in Cannabis is simply a possession of cannabis charge, but requires a bit more weight, as you might imagine,

1. In excess of 25 pounds, but less than 2,000 pounds (or 300-2,000 plants), the mandatory minimum prison term shall be 3 years, and a $25,000 fine;
2. From 2,000 pounds – 10,000 pounds (or 2,000 – 10,000 plants), the mandatory minimum prison term shall be 7 years, and a $50,000 fine;
3. From 10,000 pounds or more (or 10,000 or more cannabis plants), the mandatory minimum prison term shall be 15 calendar years, and a fine of $200,000.

Trafficking in Cocaine has minimum mandatory prison sentences as follows:

1. 28 grams – 200 grams carries a mandatory minimum term of 3 years prison and a $50,000 fine;
2. 200 grams – 400 grams carries a mandatory minimum term of 7 years prison and a $100,000 fine;
3. 400 grams – 150 kilograms carries a mandatory minimum term of 15 years prison and a $250,000 fine;
4. more than 150 kilograms is a first degree felony punished by life imprisonment, and shall be ineligible for any form of discretionary early release (except pardon or medical).

Trafficking in Ecstasy/MDMA (Methylenedioxymethamphetamine)

1. 10 grams or more, but less than 200 grams carries a mandatory minimum term of 3 years prison and a $50,000 fine;
2. 200 grams – 400 grams carries a mandatory minimum term of 7 years prison and a $100,000 fine;
3. 400 grams or more carries a mandatory minimum term of 15 years prison and a $250,000 fine;
4. more than 150 kilograms is a first degree felony punished by life imprisonment, and shall be ineligible for any form of discretionary early release (except pardon or medical).

Trafficking in LSD (LYSERGIC ACID DIETHYLAMIDE, didn’t our government invent this stuff?) [as a side note here, careful attention should be paid so that the state is not including the weight of the “paper” as part of the total drug weight, LSD’s total weight can be treated differently than the total weights attributed to oxycodone pills, for example]

1. 1 gram or more, but less than 5 grams carries a mandatory minimum term of 3 years prison and a $50,000 fine;
2. 5 grams – 7 grams carries a mandatory minimum term of 7 years prison and a $100,000 fine;
3. 7 grams or more carries a mandatory minimum term of 15 years prison and a $250,000 fine;

Trafficking in Methamphetamine (crystal meth, etc)

1. 14 grams to 28 grams carries a 3 year minimum mandatory prison sentence, with a minimum fine of $50,000, or,
2. 28 grams to 200 grams carries a mandatory minimum 7 years prison, plus a $100,000 fine, and,
3. 200 grams or more carries a 15 year minimum mandatory prison sentence, plus a $250,000 fine.

Trafficking in Fentanyl is a violation of Fla. Stat. 893.135(1)(c)(4)(b), and the punishments break down as follows:

• For 4 grams to 14 grams, the minimum mandatory prison sentence is 3 years, and the minimum fine is $50,000
• For 14 grams to 28 grams, the minimum mandatory prison sentence jumps to 15 years, and the minimum fine is $100,000, and
• For 28 grams or more of Fentanyl, the mandatory minimum prison sentence is 25 years, with a minimum fine of $500,000.

There are lots of factors that criminal lawyer John Guidry will consider when defending trafficking charges, so let’s start with some basics.

Basics of Trafficking Defense

First we challenge the circumstances of your arrest. If you were stopped in your vehicle, did the officer have legal grounds to make the stop? Is there a constructive possession issue? Was the search of your home, person, or car legal? Was the warrant issued to conduct the search legal? Did others have access to where the drugs were found? [for more info on car searches with multiple passengers, check out my article Junk in the Trunk, Again] Are statements of co-defendant or co-conspirator admissible, and without co-defendant will the defendant’s constitutional right to confront his accuser be violated? Was the conduct of the officers and Confidential Witnesses legal, was the accused entrapped? Did defendant have access to place where drugs were found (i.e. a locked safe)?

The weight of the drug plays a crucial role in a trafficking case. Thus, if the weight is just over the trafficking amount (i.e., say 30 grams of cocaine), then a Motion to Re-Weigh Evidence may be filed. In such a case, we’re asking the judge to allow our defense expert, a scientist with his own lab, to re-weigh the evidence, often times using methods that involve heating up the drug to allow the moisture to be released, but not so much heat as to change the chemical composition of the drug. With less moisture, we have a more scientifically accurate account of how much of the drug was actually “trafficked”. Some courts will grant such a motion, some will not. It costs the defendant a bit of money to hire such an expert ($950-$1,750), but the payoff can be huge, because in close weight cases we don’t want to take FDLE’s word on such an important issue. As you might suspect, the weights brought back by government paid FDLE workers can vary greatly from those numbers produced by unbiased, independent labs. Often times, the state’s labs are not weighing the drugs correctly, and challenges can be brought based upon these procedures (or lack thereof). For more details on how these cases can be overturned due to weighing issues, take a look at my article entitled “How to Weigh Drugs in a Trafficking Case.”

The weight of a drug can be an even tougher issue in a trafficking in hydrocodone case. The Florida Statutes define the weight of a controlled substance as the total weight of the mixture within which the controlled substance. This makes for a completely unscientific calculation of actual weight of the illegal substance. To see how this works, let’s consider cases involve Vicodin pills, which contain 500 mg acetominiphen (tylonol, legal) and 5 mg hydrocodone (illegal). Doing the math here, 100 pills of Vicodin will weigh approximately 50.5 grams (enough for a big trafficking charge), but there’s only about 1 gram of hydrocodone total, scientifically speaking. Unfortunately, some courts have held that the State is entitled to convict a defendant based on the entire weight of the pills including the filler substances, even though the actual, scientific, weight of the illegal substance is far less. Our Federal government no longer counts the entire weight of the pill for trafficking purposes, yet Florida seems to lag behind in such reasonable logic. For more information on this issue, read my article entitled “Federal Government Abandoned Unfair Trafficking Sentences Long Ago, Florida Courts Still Holding On“. Thankfully, our legislature recently passed a bill to lighten the minimum mandatory sentences on oxycodone and hydrocodone, effective July 1, 2014. However, it is still disturbing that our legislative branch continues to create mandatory sentences for all sorts of misdemeanor and felony crimes, thus limiting the sentencing abilities of the judicial branch (yes, this is a story for another day).

Often times, THE MOST IMPORTANT CHALLENGE in a trafficking case involves the lab analyst’s conclusions, as these lab analyst can be sloppy with their understanding of statistics and error rates and confidence. In general, a lab analyst may be scientifically confident in the testing of one oxycodone pill, but may not be confident that the remaining 200 untested pills are also oxycodone. In other words, FDLE doesn’t test every pill in a trafficking case, and this creates a scientific problem of proof (or, lack thereof). The reason for this involves statistics, and the degree of confidence a lab analyst is scientifically permitted to have based upon the number of pills tested. For example, if they’ve only tested one pill (as FDLE commonly does), their degree of confidence that the other pills also contain oxycodone only spreads to, at most, another 9 similar looking pills. If FDLE is presented with 200 pills and they only test one, don’t let them testify that they’ve proven trafficking. They haven’t. By testing one pill only, they’ve proven that, at most, 10 of these 200 pills are, in fact, oxycodone. Case dismissed.

Delving into the science with the lab analyst is extremely important for some trafficking cases. Your attorney will need to obtain a copy of the “lab jacket” from FDLE’s laboratory, as this folder contains all of the measurements and details of the testing done. When a lab report in a trafficking case claims “99.7 confidence” in their result, they are only claiming that they are 99.7 certain that the weight of the 200 pills is accurate. They are not 99.7 confident that all 200 pills contain oxycodone. Statistically, scientifically, they can only be confident that a few of these pills contain oxycodone. They would have to test, say, 28 pills to be confident that the 172 pills also contain oxycodone. Your attorney may need to hire a forensic chemist to assist in the deposition of FDLE’s lab analyst to tease apart the often misleading FDLE lab reports. After all, this analyst is the person that will prove this case is a trafficking, as opposed to a mere possession. You would be surprised how often the state cannot prove this!

There are still many defenses available to defeat a trafficking charge, one such defense is known as the “prescription defense”. The main reason we have such a defense on the books is that many Orlando citizens do not carry their medicine around in the required pill bottle. As such, when the police see the pills without a bottle, they simply make an arrest, rather than doing an actual “investigation” (remember when the police did such things?) to show that a drug was–in fact–properly prescribed.

Conspiracy to Commit…

And what discussion of trafficking would be complete without mentioning conspiracy issues. Yes, many trafficking cases are really “conspiracy to commit” trafficking cases. Where the accused’s involvement in the conspiracy enterprise appears to be minimal at best, with no prearrangements or meetings with the other defendants, Florida courts been inclined to dismiss such conspiracy charges. In order “[t]o establish a conspiracy and appellant’s participation in it, the state must prove ‘an express or implied agreement or understanding between two or more persons to commit a criminal offense,’ and an intention to commit that offense.” Sheriff v. State, 780 So.2d 920, 921 (Fla. 4th DCA 2001). “Direct proof of the agreement is not necessary; it may be inferred from the circumstances.” Arguelles v. State, 842 So.2d 939 at 944. Florida courts have upheld conspiracy convictions where defendants are involved in a series of meetings, arrangements and negotiations to sell or buy illegal drugs that lead to such sale or purchase. Pino v. State, 573 So.2d 151, 152 (Fla. 3d DCA 1991).

Often times, lazy prosecutors will charge a citizen with conspiracy simply because the person was found to be present during a drug transaction. In other words, the State has no proof of an “agreement”. One Florida court put it nicely, stating that when “the defendant [is] merely present at the scene of the crime, had knowledge of the crime, or even aided others in the commission of the crime”, such instances are “inadequate, without more, to sustain a conspiracy conviction” Dieujuste v. State. 86 So.3d 1209 (Fla. 4th DCA 2012) citing Jackson v. State, 74 So.3d at 563. For further reading on cases without proof of an agreement, check out my article “Conspiracies are Everywhere“.

Downward Departures on Minimum Mandatory Sentences

If you’re unfortunate enough to receive a minimum mandatory sentence on a trafficking charge, at least you’ll be entitled to gain time on that sentence. Mastay v. McDonough, Florida Department of Corrections, 928 So. 2d 512 (Fla. 1st DCA 2006). But, why not attempt to get rid of the minimum mandatory in the first place? To do this, the judge (or prosecutor) must be convinced that the case qualifies for a “downward departure sentence”. Any sentence that his below the minimum is considered a downward departure. So, if you’re facing a 15 year minimum mandatory and the judge gives you 14 years, that’s a downward departure and the judge must list the reasons for granting such in writing. A judge cannot pull a reason out of thin air, the only legal reasons for departing are found in Florida Statute 921.0026. The statute lists over ten circumstances that qualify for departure. For example, if the departure is agreed to by the prosecutor as part of a plea agreement, such a departure is legal. Or, if the defendant was too young at the time of the offense to appreciate the consequences, that too is a reason to depart. And so forth, and so on. If you’d like to read more about some of the reasons for a departure sentence, take a look at my article “More Injustice From Minimum Mandatory Sentences“.

Currently, the law is rather vague about certain downward departure sentences on a minimum mandatory for trafficking. The most common reason for departure is a plea agreement with the state. But, absent an agreement, a departure sentence will be an uphill battle. An argument for a departure starts with looking at the trafficking statute itself. As is true of all criminal statutes, a departure sentence is permitted unless the statute expressly states otherwise. The most common charge containing a prohibition on departure involves language with states the charge “must be served day for day”. In such cases, the legislature is clear that no breaks are permitted. Such is not the case with the trafficking laws. The trafficking statute prohibits a some forms of early release, but permits gain time. See State v. Steadman, 827 So. 2d 1022 (Fla. 3d DCA 2002)

For those of you interested in the constitutionality of Florida’s trafficking laws, it should be noted that only a couple of years ago Florida’s drug laws were declared unconstitutional by a federal court. Unfortunately, they were later found “constitutional” by Florida courts. That being said, the analysis put forth in the federal decision is still sound reasoning, even though it’s not good law. To see how this happened, we must go back to 2002, when our Florida legislature made Florida the only state in which a drug crime could be proved without a citizen ever knowing that the substance was an illegal drug (we call this element the “scienter requirement” or “mens rea”). This change to Florida law resulted in a federal court declaring our state drug laws under section 893.13 unconstitutional. While this was good news while it lasted, it’s important to note that Florida courts were not bound by this new decision….For more details on this important analysis, check out my articles “Why Florida’s Drug Law is Unconstitutional“, “How Will Florida Courts Respond to Federal Court’s Ruling Striking Down Florida Drug Law?”, “Florida Drug Law Declared Unconstitutional“, and last but not least, “Florida Supreme Court Declares Drug Law Constitutional–Mens Rea R.I.P.“

Yes, all of this is complex, and new case law is coming out every day changing our analysis. Thus, all the more reason to give criminal attorney John Guidry a call to discuss these issues. Don’t talk to the police, or even your friends about your case, make sure you call me first. Thanks.