Possession of drugs (“controlled substance”) with the intent to distribute or sell is a felony offense under Florida state law as well as under Federal law. The Florida drug laws are found in Florida Statutes §893.13 and the federal laws are found primarily in 18 U.S.C. §841. Possession and possession with intent to distribute are treated differently in both jurisdictions. Possession with intent to distribute is considered a felony crime and carries a more severe punishment. An offense is considered a felony if the maximum punishment is over one year. Drug felony statutes often carry minimum mandatory sentence if the drug quantity exceeds a threshold quantity. For example the minimum mandatory sentence for possession with intent to distribute drugs under Federal law begins at five years. In Florida state courts the minimum sentence begins at three years.
The punishment is also determined by the sentencing guidelines with are advisory but are very influential with sentencing judges.
Possession with intent to distribute drugs and possession to sell are treated as the same offense.
A jury would have to find the following elements:
That the accused knowingly and willfully possessed the controlled substance, and
That the accused possessed the controlled substance with intent to distribute.
The “possession with intent to distribute” means to possess with intent to deliver or transfer possession of a controlled substance to another person, with or without any financial interest in the transaction.
The offense does not require prove of intent to sell
Under this legal definition, a person driving a car containing a large quantity of marijuana will can be charged and convicted of the crime. Possession to distribute does not require evidence that the accused was trying to sell the drugs. Additionally, there does not need to be evidence that the accused was actually going to deliver the drugs to anyone. A large quantity of drugs found in the person’s house can be evidence of possession with intent to distribute even if there is no evidence showing who was going to receive the drugs.
The proof to support a conviction of possession with intent to distribute is based on the quantity of controlled substance that the person possesses. A quantity that is more than a personal use quantity will be considered possession with intent to distribute and is sufficient to proof to convict a person. Of course, evidence that the accused was attempting to sell or purchase a larger than personal use quantity of drugs will be sufficient proof of possession with intent to distribute. The crime of drug conspiracy is often charged with possession with intent if there are two or more persons involved in the offense.
Defenses to the charge
A legal defense to this charge is the accused person’s lack of knowledge about the presence of drugs. A person riding as a passenger in a car that contains a quantity of drugs is not guilty of possession of intent to distribute if the person is unaware of the presence of the contraband. Knowledge is an element. Even the passenger learns during the car ride that the driver is carrying the contraband and planning to deliver it to another person, the passenger is still not guilty of the crime. The passenger is not in possession of the contraband because he had no control over it. Furthermore, the passenger is not participating in the delivery. Though law enforcement may be suspicious of everyone in a car carrying narcotics, the passenger under these facts should not be charge with a crime.
Possession or simple possession is a misdemeanor under Federal law and Florida law. It is based on a small quantity, normally the amount for personal consumption. If is common for the prosecutor to offer a diversion sentence for a first time offender. This usually means if the person avoids any criminal problems and attends a drug program, the charges will be dismissed. If the diversion program is not made available, a judge will often not adjudicate the accused with a good criminal history. Under Florida law, the person will avoid having a conviction and the arrest may be sealed or expunged.
For more information please contact our office now to set up an appointment with attorney Daniel Lenghea to determine the best cause of action.