Introduction to pill possession ni Florida

Disclaimer: This page is for informational purposes only. It is not meant as legal advice. Use this page as a starting point for beginning a discussion with a licensed attorney.

It is becoming more and more common for individuals to get arrested for possessing different types of pills without a valid prescription. You can be charged with possessing a controlled substance even if you are not buying the pill or using it for recreational means.

Many times when a person has an ache or pain, or if they are not feeling well, a friend or family member will give them a pill that the friend or family member has been prescribed in order to try to help the person feel better. This is a crime. The friend or family member can be charged with a criminal act for delivering or giving the pill to you without a prescription, and you can be charged for possessing the pill without a prescription.

In other cases, people obtain pills illegally because they have become addicted to the pill or just because they want to get high. It doesn’t matter whether or not there is a legitimate reason for possessing the pill or not. If you have a pill without a prescription – or if you give a pill away or sell it to someone without a prescription – then it is a felony offense in most cases.

COMMON PILLS AND THEIR CATEGORIES

Florida Statute 893.03 sets out certain schedules for various types of drugs. The drugs listed are considered to be illegal. The schedules define whether the drug has a legitimate medical purpose and whether the substance has the potential for abuse. The drugs seen as being the most harmful are in Schedule One. The least harmful are listed in Schedule Five.  The potential sentence you can receive can be based on the schedule of drug you are found to be possessing and the category that contains it in the statute.

The drugs listed here are not the only illegal substances listed in the schedule!!! Obviously some types of pills are more commonly found and searched for than others. Some of the more common drugs leading to arrests are listed below. The chemical name is listed on the schedule, the common or street name is in parenthesis to the side.

SCHEDULE I.—A substance in Schedule I has a high potential for abuse and has no currently accepted medical use in treatment in the United States and in its use under medical supervision does not meet accepted safety standards. Most pills that are commonly found on a person leading to an arrest are not found under Schedule One.

SCHEDULE II.—A substance in Schedule II has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States, and abuse of the substance may lead to severe psychological or physical dependence. The following substances are controlled in Schedule II:

  • Codeine
  • Methaqualone (Quaaludes)
  • Opium
  • Hydrocodone (Vicodin, Loritabs)
  • Oxycodone (Percocet)
  • Hydromorphone (Dilaudid)
  • Morphine
  • Phenobarbital

SCHEDULE III.—A substance in Schedule III has a potential for abuse less than the substances contained in Schedules I and II and has a currently accepted medical use in treatment in the United States, and abuse of the substance may lead to moderate or low physical dependence or high psychological dependence or, in the case of anabolic steroids, may lead to physical damage. The following substances are controlled in Schedule III:

  • Steroids
  • Testosterone

SCHEDULE IV.—A substance in Schedule IV has a low potential for abuse relative to the substances in Schedule III and has a currently accepted medical use in treatment in the United States, and abuse of the substance may lead to limited physical or psychological dependence relative to the substances in Schedule III. The following substances are some of the more common that are controlled in Schedule IV:

  • Alaprozam (Xanax)
  • Clorisoprodol
  • Clonazepam (Klonopin)
  • Diazepam (Valium)
  • Lorazepam (Ativan)
  • Phenobarbitol
  • Phentermine (the diet drug)

SCHEDULE V.—A substance, compound, mixture, or preparation of a substance in Schedule V has a low potential for abuse relative to the substances in Schedule IV and has a currently accepted medical use in treatment in the United States, and abuse of such compound, mixture, or preparation may lead to limited physical or psychological dependence relative to the substances in Schedule IV. For the most part, Schedule V drugs are those that contain just a small amount of a controlled substance, or an unusually larger amount of an over the counter substance. Such as:

  • Stimulants
  • Substances such as 800 milligram pills of Tylenol

When you are found to be in possession of any type of pill containing a controlled substance in Florida, the state has guidelines on how the possession is to be charged. The possession falls into three basic categories. These categories are:

  • Simple Possession
  • Sale/Purchase/Delivery  and
  • Trafficking

FOR ANY CONVICTION OF ANY DRUG CRIME, THERE IS A TWO YEAR DRIVER’S LICENSE SUSPENSION THAT WILL BE IMPOSED!!! This means if you are convicted of possessing, selling, delivering or trafficking any type of pill, no matter how small the amount, you will lose your driving privilege. There are also some professions regulated by the State that mandate a suspension of professional licenses if you are convicted of a drug related offense. So it is important to speak with a licensed attorney about the best way to protect these rights you may hold.

How do I know which category the State will charge me with?

The way the case is charged depends on the circumstances surrounding its discovery and the weight of the substance found. If you are found with one or two pills, it is very unlikely that the State will charge you with dealing without additional evidence. However, if you have multiple baggies or containers with lots of pills, it is more likely that you will incur some type of sales charge.

What do I do if I am arrested for a pill charge?

You call a qualified defense attorney immediately! Controlled substance charges, even those relating to the possession of pills or unprescribed medication, have several mandatory penalties that can affect work, school and everyday aspects of you life. If you are accused of a possession crime, call the office of Finebloom, Haenel & Higgins to discuss your options! We are available 24/7 by calling (888) 424-7777.

Simple Possession

Simple possession is the term used to describe the crime charged when the state feels you have a controlled substance for personal use or recreational use. This is the least severe of the possession charges. Many times cases of simple possession are given minimal jail sentences or periods of probation. However, even simple possession can be punishable by up to five years in prison, depending on the amount you possess.

If you are found to be in possession of any pill or pills listed under Schedule I, Schedule II, Schedule III or Schedule IV, you will most likely face a felony possession charge. Most simple possession charges are third degree felonies punishable by up to five years in prison.

Possessing a drug listed in Schedule V is considered a first degree misdemeanor punishable by up to one year in the county jail. Offenders are most commonly placed on probation in these cases or given very short jail sentences.

In both felony and misdemeanor cases, if you are placed on probation, the judge will most likely order drug evaluations and counseling. You will be required to submit to random urine screenings to make sure you are not using any type of illegal substances while on probation. The Court most often imposes fines and mandatory community service as well. Violating any of these terms of your probation subjects you to a charge of violation of probation. If you are found guilty of the violation you can be subjected to the maximum sentence allowed by law.

If you are convicted of felony possession charges you are a convicted felon. This means you lose your right to vote, possess a firearm and you can also lose your professional license. If you receive financial aid for school you can lose the right to receive that aid. If you are living in a home with the aid of public assistance you can lose that assistance as well.

Of course, for any conviction for a drug offense, if you are adjudicated guilty, you will also lose your driver’s license for a period of two years.

Even the simple possession charges carry harsh consequences. This is why it is so important to have quality representation from an experienced attorney.

What does the State have to prove to convict me of simple possession?

The jury instructions for possession state that in order to prove the crime of possession of possessing any type of unprescribed pills the state must prove the following:

  1. You possessed a certain substance. To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. Possession must be actual or constructive.
  2. The substance was a controlled substance listed in one of the Schedules of Florida Statute 891.03 and you did not possess a valid prescription.
  3. You had knowledge of the presence of the substance. If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed.

So basically, this means the State must show that you had the pills in an area you control and you knew it and you did not have a legal reason for having it.

What is constructive possession and how does it work? How is it different from actual possession?

There are two types of possession when it comes to drug charges: actual possession and constructive possession.

Actual possession means that the drugs are found on your person: such as in your hand, in your pocket, in your bra or some other place on your body. The jury instruction for actual possession states as follows:

Actual possession means:

  • The controlled substance is in the hand of or on the person, or
  • The controlled substance is in a container in the hand of or on the person, or
  • The controlled substance is so close as to be within ready reach and is under the control of the person.

Constructive possession means that the drugs were found in an area where you had dominion and control. Constructive possession is commonly charged in cases where the drugs are found in cars. When the drugs are found in a car where there are multiple persons riding, the state will charge constructive possession.

The jury instruction for constructive possession reads as follows:

  • Constructive possession means the controlled substance is in a place over which the person has control, or in which the person has concealed it.
  • In order to establish constructive possession of a controlled substance if the controlled substance is in a place over which the person does not have control, the State must prove:
    • (1) control over the controlled substance and
    • (2) knowledge that the controlled substance was within the person’s presence.
  • Possession may be joint, that is, two or more persons may jointly possess an article, exercising control over it.  In that case, each of those persons is considered to be in possession of that article.
  • Mere proximity to a controlled substance is not sufficient to establish control over that controlled substance when it is not in a place over which the person has control.

Constructive possession gives the State a way to charge two or more people with the same drugs. However, it can also be a good defense. If you have questions about whether or not the State may be able to prove a charge of constructive possession against you, you should consult an attorney with experience in presenting this type of defense.

Manufacture, Sale or Delivery

Florida statue 893.13 deals with the manufacture, sale and delivery of illegal substances. Penalties vary according to the amount manufactured or sold, and whether the crime was committed in a drug free area, such as a school, park or church.

Florida statue 893.02(15)(a) defines “manufacture” as: “the production, preparation, propagation, compounding, cultivating, growing, conversion, or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging of the substance or labeling or relabeling of its container. . .”

“Sell” means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value. It is the common understanding of trading some type of money or other valuable object for the drug.

“Deliver” or “delivery” means the “actual, constructive, or attempted transfer from one person to another of a controlled substance…”

If you are found to be preparing a drug for sale by making or packaging it, the State will probably charge you with manufacturing. If you are caught actually exchanging the drug for some type of payment, then you will most likely be charged with sale. If you are taking it from one place to another or from one person to another, you will more than likely be charged with delivering the drug. However you are charged it is still a criminal act.

What is possession with intent to sell, manufacture or deliver?

In the simplest of terms, “possession with intent” means that you had in your control some type of controlled substance. But instead of simple possession where you have it for your own personal use, you have possession of the controlled substance because you intend on selling it or distributing it, or packaging it to another person.

Sometimes the State determines this by the amount of the drug you have and how it is packaged. The State also takes into consideration how much money and the denominations found on your person when making the determination. Where you are found with the pills and what you are doing when they are discovered is also a factor.

What does the state have to prove to convict me of manufacture or sale or delivery of any type of pills?

Like every other criminal act, there are certain elements the State must prove in order for you to be convicted of manufacture, sale or delivery of any controlled substance. These elements are as follows:

1. That you:

  • Sold  – “Sell” means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value.
    OR
  • Manufactured –  “Manufacture” means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly.  Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis.  It can also be by a combination of extraction and chemical synthesis.
    OR
  • Delivered –  “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.

2. The substance was one listed in one o the Schedules found in 891.03.
AND SOMETIMES

In a case of possession with intent to sell, manufacture or deliver, the State must show in addition to the elements listed above that you had:

  • Possession – To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. Possession may be actual or constructive. Possession may be joint, that is, two or more persons may jointly possess an article, exercising control over it.  In that case, each of those persons is considered to be in possession of that article.
  • Knowledge – That you had knowledge of the presence of the substance (if you are charged with possession with intent). If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed.

If the State is able to prove these elements, you can be found guilty of the charge. If they cannot prove all of these elements then you can be found not guilty. If you are found guilty or enter a plea of guilty to the charge then you will be sentenced by the judge. Before you plea, you should speak with a qualified defense attorney to explore defense options. In some cases the State may be unable tot prove some of the elements of the charge. If this is so you may be able to avoid a lengthy jail stay.

What are the penalties for manufacturing, selling or delivering any type of pill listed in the Controlled Schedules?

The maximum penalty for the crime depends on which Schedule the drug is found and how much you manufacture, sell or deliver.

For drugs found in Schedule II such as:

  • Quaaludes
  • Vicodin
  • Loritabs
  • Oxycodone
  • Oxycotin
  • Percocet
  • Dilaudid
  • Morphine and
  • Phenobarbital

a conviction is a second degree felony punishable by up to fifteen years in the Florida state prison system.

For drugs found in Schedule III or Schedule IV such as:

  • Steroids
  • Testosterone
  • Xanax
  • Klonopin
  • Valium
  • Ativan
  • Phenobarbitol and
  • Phentermine

A conviction is a third degree felony punishable by up to five years in the Florida state prison system.

For drugs found in Schedule V such as 800 milligram Tylenol, the punishment is a first degree misdemeanor punishable by up to one year in the county jail.  

However, there are certain enhancements that can change this so that the charges are more severe.

What types of enhancements can give me more jail time?

Manufacture or sales (or possession with intent to manufacture or sell) within 1,000 feet of a drug free area.

There are several places that are considered to be “drug free” areas. If you are caught selling or delivering pills within 1000 feet of any of these areas, your charge is enhanced.

If your original charge was a third degree felony, it is enhanced to a second degree felony punishable by up to 15 years in a Florida State prison.

If your original charge was a second degree felony, it is enhanced to a first degree felony punishable by up tot 30 years in a Florida State prison.

In some cases there is a three year minimum mandatory sentence that must be served day for day. In addition there are mandatory fines and community service that must be imposed if it is proven that you sold any type of pills within 1000 feet of the drug free zone. These places that are designated by law as “drug free” are:

  • Daycare centers
  • Schools
  • Parks
  • Community or Recreation Centers
  • Colleges
  • Churches
  • Public Housing Properties
  • Assisted Living Facilities

If you are convicted of selling, manufacturing or delivering a controlled substance within 1000 feet of any of these areas, you may face a 3 year minimum mandatory prison sentence that must be served. The mandatory sentence depends on the type of drug you are selling and the amount being sold.

You may also face a $500 mandatory fine and 100 mandatory community service hours if you are convicted of manufacturing, selling or delivering drugs in these areas. This may not seem like a big deal, but in order to enforce these penalties the Courts usually place the offender on probation. This carries lots of restrictions and fees. Plus, if you violate the probation by not paying or completing the hours, you could face an additional criminal charges and significant jail or prison time.

How do they measure 1000 feet?

In discussions about how the 1000 feet should be measured, the purpose is to measure 1000 feet in any direction from the property. If you think that a measurement is incorrect or that you have been not been charged properly you need to contact an attorney well versed in these cases. The measurement, and how it is proven, can be tricky. Only a professional attorney with experience in defending these types of charges would be able to accurately explain how this is done.

Are there any other enhancements that I may face?

Florida Statute 893.13(4)(b) makes it a second degree felony to sell any controlled substance to a child under the age of 18. It is also illegal to ask them to manufacture, sell or deliver any controlled substance for you. If you do, you can be charged with a second degree felony and face up to 15 years in prison. If you are sentenced to prison time, the prison term may not be suspended, reduced, or replaced with probation time. This means any sentence is served day for day.

How do they prove the enhancement of involving a person under 18 years of age in a drug charge?

To prove the enhancement of involving a person under 18 years of age in the sale, manufacture, or delivery of a controlled substance, the State must prove the following three elements beyond a reasonable doubt:

  1. a. You delivered a certain substance to a person under the age of 18 years of age; or
    b. You used or hired a person under the age of 18 years of age as an agent or employee in the sale or delivery of a certain substance; or
    c. You used a person under the age of 18 years to assist in avoiding detection or apprehension for any drug charge.
  2. The substance was a controlled substance.
  3. You were 18 years of age or older at the time you involved the person under 18 in the act.

If the State is able to prove these elements beyond a reasonable doubt, you can be sentenced to up to 15 years in prison.    

What is the crime of “Maintaining a Drug Property”?

Florida Statute. § 893.13(7)(a) makes it a crime to keep or maintain a store, warehouse, vehicle, or other structure in Florida for the purposes of processing or selling pills of any kind. It is also illegal to use such a structure as a point from which to distribute or sell unprescribed drugs. Violations are a first degree misdemeanor, punishable with up to one year in jail.

This type of charge can also lead to civil forfeiture actions as well as the criminal charge. A forfeiture action is a civil suit filed by the State to try to take away the property that is involved. This is separate from any criminal actions and can lead to large legal fees in addition to any criminal penalties.

When this type of charge is initiated by the State, the investigating agency often causes extensive damage to the property. In the case of houses they may break doors and take apart carpet, molding or cabinets looking for hidden places. In the case of vehicles the authorities may strip the car down taking out seats and tearing out dashes. In these cases it is almost impossible to recover any money to repair the damages.

What if I rent the home out to others?

If you rent the home and you know that the person you are renting to is using the property for this illegal purpose, the State may take action against you as well.

For any of the manufacturing, sale or delivery charges, you can also face a two year driver’s license suspension. If you are convicted of a felony, you can lose rights to vote, possess a firearm, and it may cost you a job. If you are a student it can cut off your financial aid, and if you are receiving public benefits such as assisted housing you can lose that as well. Some housing and community associations may also take action to have you evicted from the neighborhood.

These are all stiff penalties. If you have been accused of selling, manufacturing or delivering drugs, contact an aggressive and experienced attorney to discuss your defense strategy immediately!!

Trafficking

Trafficking statutes are designed to target individuals who deal is excessive quantities of drugs. The distinguishing factor in a trafficking charge versus a regular sales charge is the weight of the drug. Under Florida Statute 893.135(6) “weight” for charging purposes goes by the total weight of the drug and any mixing agent. Not the weight of the drug itself. This means the coating of the drug and any mixing agents are considered when determining total weight.

For some drugs, the number of pills is what is considered for a trafficking charge. This means, in some case, the equivalent of one “prescription refill” could amount to enough to constitute a trafficking charge.

What does the State have to prove to convict me of trafficking charges?

Just like other criminal offenses, the State has to prove its case by showing each and every element beyond a reasonable doubt. To prove the crime of Trafficking in Cannabis, by law, the State must prove the following three elements:

1. That you knowingly:

  • Sold;
  • Purchased;
  • Manufactured;
  • Delivered;
  • brought into Florida; or
  • possessed a certain substance.

2. That the substance you sold, purchased, manufactured, delivered, brought into Florida or possessed was listed in one of the Controlled Schedules found in Florida Statute 891.03; and that

3. The substance met the weight or numerical requirements set out under the statute.

If the State is able to prove those three elements beyond a reasonable doubt you can be convicted of trafficking and face the mandatory time in prison as well as the mandatory fines. If you are charged with trafficking you MUST consult an experienced attorney at once! Trafficking charges are serious matters and should not be handled by an attorney without the proper knowledge and experience.

What if I am selling my prescriptions for extra money?

There is no exception or mitigation in the Statutes for selling a legitimate prescription. If you are caught selling your prescription you can still face criminal charges.

What is “doctor shopping”?

Some individuals in an attempt to gain access to certain pills will go from doctor to doctor to try to obtain multiple prescriptions for medication. When you go from one doctor to another and you do not inform the doctor that you have seen another practitioner or that you have already been prescribed a controlled substance so that you can get access to more medication or gain more than one prescription, you face a criminal charge. This charge is commonly known as “doctor shopping.” The official criminal charge is “withholding information from a practitioner.” This crime is a third degree felony punishable by up to five years in prison.

It is also a third degree to give false information (such as a fake name or to give fake symptoms) in an attempt to acquire a prescription for a controlled substance. To do so is also a third degree felony punishable by up to five years in prison.

No matter what classification of drug charge you face, you will need quality representation. Receiving a conviction for any type of drug charge is extremely serious! You can become a convicted felon and lose many constitutional rights. You can lose your driving privilege. You can receive monumental fines. You may possibly lose your property!! Don’t let this happen to you! Protect your rights! Call the law offices of Finebloom, Haenel & Higgins today!! Our professional and dedicated staff has over 20 years of combined experience in criminal defense. We can explore every option for you. We will discuss all of the available defenses and custom create a strategy unique to your situation. Call us now at (888) 424-7777. Our attorneys are available 24/7 to protect your rights. Call us now and fight your case today!