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Drug Offenses

Defenses available to you

If you have been arrested for selling, purchasing, manufacturing, delivering, or possessing an illegal drug, there are many defenses that are available to you. When reviewing your case, we start from the time of the original police encounter and move to the time of arrest to determine if any portion of the police action was unlawful. An officer can only search a person pursuant to a protective sweep, in an exigent or emergency situation, incident to an arrest, with your consent, in hot pursuit, to conduct an inventory search, or in the course of a Terry frisk. If your police encounter was unlawful, then any evidence obtained after the unlawful action cannot be used against you.


The Police Encounter

Was your contact with the officer a result of a citizen encounter?
A citizen encounter occurs when an officer encounters a citizen and the citizen feels free to go, but chooses to remain. Whether or not you felt free to leave will be based on a reasonable person standard and circumstances such as the language or tone of the officer's voice, whether the officer blocked your path or movement, the number of officers, and whether the officer was in uniform will be considered.

Was your contact with the officer a result of a stop?
If so, then the officer must have had a reasonable suspicion that you were or were about to be involved in criminal activity. Any search done at this point should be limited to a protective frisk to ensure that you were not carrying any weapons. If there were no objective circumstances to give the officer the reasonable suspicion that he needed to stop or frisk you, then the stop could be unlawful.

Was your contact with the officer an investigatory detention?
An investigatory detention occurs when an officer stops a person and temporarily detains them. The length of the detention must be reasonable. The investigating officer needed to have reasonable suspicion "plus more" of impeding or past criminal activity. Our attorneys will review the officer's reasoning to ensure that it is based on objective beliefs and circumstances.

Was the contraband found subsequent to an arrest?
Once you are arrested (for any criminal offense), a police officer has the right to search you and your immediate person, including your vehicle. If contraband is found throughout this search then you can be charged for possession (or trafficking depending on the amount) in addition to your original arrest that prompted the search. However if the officer lacked probable cause to arrest you in the first place, then any evidence yielded from the subsequent search cannot be used against you.

Was the contraband found during the execution of a search warrant?
If so, there are many different factors that can be explored. Initially, the warrant needs to be reviewed to see whether the information that supported the warrant's issuance was stale. Secondly, the scope of the search needs to be reviewed, i.e. was the contraband found in the location that the search warrant was issued for, or was contraband found in containers that were not reasonably likely to contain what the warrant authorized to search for. Finally, we explore whether the warrant was executed properly, i.e. did the officers knock and announce their presence as required, and was it executed within 10 days of issuance.

 

The Arrest

Were Miranda rights read to you prior to any questioning?
Once you are placed under arrest, your Miranda rights must be read to you before you are asked any questions. If they were not read to you, then any statements that you made after you were arrested cannot be used against you.

During questioning did you ever invoke a right to a lawyer?
If you exercised your right to speak to an attorney then any questions that were posed to you after you invoked your right were improper and should not have been asked. Any statements made in response to these questions were improper.

Did you feel coerced or threatened into making a statement?
Consent that is the product of official intimidation or harassment is not consent at all, and citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse. If your consent to search resulted from coercion or intimidation, all of the circumstances surrounding the encounter must be considered in ascertaining the voluntariness of the consent to determine whether police conduct would have communicated to a reasonable person that he was not free to decline the officer's request or otherwise terminate the encounter. Evidence of coercion may be found from a prolonged detention, a statement that you are free to leave if you consent to a search, a threat to obtain a search warrant if you did not consent to the search, especially when the police lack probable cause or sufficient evidence for such warrant, an implied promise that defendant would not be prosecuted, or a repeated requests for consent.

 

The States Burden of Proof

Can the state prove possession?
In order to prove possession, the state must prove that the person had either actual or constructive possession. To prove actual possession, the state must prove that you had knowledge of the presence of contraband and had the ability to maintain control over it or reduce it to possession. In order to prove constructive possession, the state needs to prove that the contraband was found in your ready reach and was within your exclusive personal control and access. Depending on the factual circumstance, i.e. where the contraband was found or if more than one person was with you when the contraband was found, there are many different defenses that can be used to negate possession.

Is there a confidential informant involved?
If you were arrested in conjunction with the State's use of a confidential informant there are many inquiries that need to be made. Questions that should be asked are: Was the CI paid compensation for his or her services? Was the CI attempting to reduce his or her own sentence? Was there a conflict of interest between the CI and yourself? What evidence is there of the reliability of the CI? Is this the first case that the CI has worked on or has he or she done several?

Was the weight of the drugs correct?
The amount of contraband that you are found with is imperative to your arrest. A gram can make the difference between possession or trafficking charges. It is always important to weigh the contraband with a scale that is independent from the law enforcement department.

 

Drug Schedules

All controlled substances are organized into five separate schedules; Schedule one contains the drugs that are considered the be the most unaccepted and have the highest potential for abuse; As such, the penalties associated with schedule one drug violations are the most stringent. As you move down to schedule five, the drugs have a lower potential for abuse and the penalties associated with their use begins to decrease.

Although these schedules are strictly adhered to, there are ways to have your sentence modified. The State Attorney may move the sentencing court to reduce or suspend the sentence if a person who is convicted of a violation provides substantial assistance in the identification, arrest, or conviction of any of his or her accomplices, accessories, coconspirators, or principals or of any other person engaged in trafficking in controlled substances. The judge may reduce or suspend your sentence if he or she finds that you rendered substantial assistance.

SCHEDULE I

CANNABIS
HEROIN
FLUNITRAZEPAM
GAMMA-HYDROXYBUTYRIC ACID (GHB)
METHYLENDIOXYMETHAMPHETAMINE (MDMA)

SCHEDULE II

COCAINE
MORPHINE
OPIUM
OXYCODONE
HYDROCODONE
HYDROMORPHONE
PHENCYCLIDINE (PCP)
AMPHETAMINES / METHAMPHETAMINES

 

Cannabis

Possession/Delivery of Cannabis

Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, in excess of 25 pounds of CANNABIS, or 300 or more CANNABIS plants, commits a felony of the first degree. If the quantity of CANNABIS involved:

a. Is in excess of 25 pounds, but less than 2,000 pounds, or is 300 or more CANNABIS plants, but not more than 2,000 CANNABIS plants, 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 $25,000.00

b. Is 2,000 pounds or more, but less than 10,000 pounds, or is 2,000 or more CANNABIS plants, but not more than 10,000 CANNABIS plants, such person shall be sentenced to a mandatory minimum term of imprisonment of 7 years, and the defendant shall be ordered to pay a fine of $50,000.00

c. Is 10,000 pounds or more, or is 10,000 or more CANNABIS plants, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 years and pay a fine of $200,000.00

For the purpose of this paragraph, a plant, including, but not limited to, a seedling or cutting, is a "CANNABIS plant" if it has some readily observable evidence of root formation, such as root hairs. To determine if a piece or part of a CANNABIS plant severed from the CANNABIS plant is itself a CANNABIS plant, the severed piece or part must have some readily observable evidence of root formation, such as root hairs. Callous tissue is not readily observable evidence of root formation. The viability and sex of a plant and the fact that the plant may or may not be a dead harvested plant are not relevant in determining if the plant is a "CANNABIS plant" or in the charging of an offense under this paragraph. Upon conviction, the court shall impose the longest term of imprisonment provided for in this paragraph.

 

Heroin

Possession/Delivery of Heroin

Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 4 grams or more of any MORPHINE, OPIUM, OXYCODONE, HYDROCODONE, HYDROMORPHONE, or any salt, derivative, isomer, or salt of an isomer thereof, including HERION, or 4 grams or more of any mixture containing any such substance, but less than 30 kilograms of such substance or mixture, commits a felony of the first degree. If the quantity involved:

a. Is 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 $50,000.00

b. Is 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 $100,000.00

c. Is 28 grams or more, but less than 30 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of 25 years and pay a fine of $500,000.00

Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 30 kilograms or more of any MORPHINE, OPIUM, OXYCODONE, HYDROCODONE, HYDROMORPHONE, or any salt, derivative, isomer, or salt of an isomer thereof, including heroin, or 30 kilograms or more of any mixture containing any such substance, commits the first degree felony of trafficking in illegal drugs. A person who has been convicted of the first degree felony of trafficking in illegal drugs under this subparagraph shall be punished by life imprisonment and is ineligible for any form of discretionary early release except pardon or executive clemency or conditional medical release. However, if the court determines that, in addition to committing any act specified in this paragraph:

a. The person intentionally killed an individual or counseled, commanded, induced, procured, or caused the intentional killing of an individual and such killing was the result; or

b. The person's conduct in committing that act led to a natural, though not inevitable, lethal result, such person commits the capital felony of trafficking in illegal drugs. Any person sentenced for a capital felony under this paragraph shall also be sentenced to pay the maximum fine provided under subparagraph 1.

Any person who knowingly brings into this state 60 kilograms or more of any MORPHINE, OPIUM, OXYCODONE, HYDROCODONE, HYDROMORPHONE, or any salt, derivative, isomer, or salt of an isomer thereof, including HEROIN, or 60 kilograms or more of any mixture containing any such substance, and who knows that the probable result of such importation would be the death of any person, commits capital importation of illegal drugs, a capital felony. Any person sentenced for a capital felony under this paragraph shall also be sentenced to pay the maximum fine provided under subparagraph 1.

 

Flunitrazepam, Rohypnol (Ruffies)

Possession/Delivery of Flunitrazepam, Rohypnol (Ruffies)

Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 4 grams or more of flunitrazepam or any mixture containing flunitrazepam commits a felony of the first degree. If the quantity involved:


a. Is 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 $50,000.00

b. Is 14 grams or more but less than 28 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 7 years, and the defendant shall be ordered to pay a fine of $100,000.00

c. Is 28 grams or more but less than 30 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of 25 years and pay a fine of $500,000.00

Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state or who is knowingly in actual or constructive possession of 30 kilograms or more of flunitrazepam or any mixture containing flunitrazepam commits the first degree felony of trafficking in flunitrazepam. A person who has been convicted of the first degree felony of trafficking in flunitrazepam under this subparagraph shall be punished by life imprisonment and is ineligible for any form of discretionary early release except pardon or executive clemency or conditional medical release. However, if the court determines that, in addition to committing any act specified in this paragraph:

a. The person intentionally killed an individual or counseled, commanded, induced, procured, or caused the intentional killing of an individual and such killing was the result; or

b. The person's conduct in committing that act led to a natural, though not inevitable, lethal result, such person commits the capital felony of trafficking in flunitrazepam. Any person sentenced for a capital felony under this paragraph shall also be sentenced to pay the maximum fine provided under subparagraph 1.

 

Gamma-Hydroxybutyric Acid (GHB)

Possession/Delivery of Gamma-Hydroxybutyric Acid (GHB)

Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 1 kilogram or more of gamma-hydroxybutyric acid (GHB), or any mixture containing gamma-hydroxybutyric acid (GHB), commits a felony of the first degree. If the quantity involved:

a. Is 1 kilogram or more but less than 5 kilograms, 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 $50,000.00

b. Is 5 kilograms or more but less than 10 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of 7 years, and the defendant shall be ordered to pay a fine of $100,000.00

c. Is 10 kilograms or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 years and pay a fine of $250,000.00

Any person who knowingly manufactures or brings into this state 150 kilograms or more of gamma-hydroxybutyric acid (GHB), or any mixture containing gamma-hydroxybutyric acid (GHB), and who knows that the probable result of such manufacture or importation would be the death of any person commits capital manufacture or importation of gamma- hydroxybutyric acid (GHB), a capital felony. Any person sentenced for a capital felony under this paragraph shall also be sentenced to pay the maximum fine provided under subparagraph 1.

 

Methylenedioxymethamphetamine (Mdma-Meth)

Possession/Delivery of Methylenedioxymethamphetamine (Mdma-Meth)

Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 10 grams or more of any of the following substances:

a. 3,4-Methylenedioxymethamphetamine (MDMA);
b. 4-Bromo-2,5-dimethoxyamphetamine;
c. 4-Bromo-2,5-dimethoxyphenethylamine;
d. 2,5-Dimethoxyamphetamine;
e. 2,5-Dimethoxy-4-ethylamphetamine (DOET);
f. N-ethylamphetamine;
g. N-Hydroxy-3,4-methylenedioxyamphetamine;
h. 5-Methoxy-3,4-methylenedioxyamphetamine;
i. 4-methoxyamphetamine;
j. 4-methoxymethamphetamine;
k. 4-Methyl-2,5-dimethoxyamphetamine;
l. 3,4-Methylenedioxy-ethylamphetamine;
m.3,4-Methylenedioxyamphetamine;
n. N-dimethylamphetamine; or
o. 3,4,5-Trimethoxyamphetamine,

individually or in any combination of any mixture containing any substance listed in sub-subparagraphs a.-o., commits a felony of the first degree, which felony shall be known as "trafficking in Phenethylamines".

If the quantity involved:

a. Is 10 grams or more but less than 200 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 $50,000.00

b. Is 200 grams or more, but less than 400 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 7 years, and the defendant shall be ordered to pay a fine of $100,000.00

c. Is 400 grams or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 years and pay a fine of $250,000.00

3. Any person who knowingly manufactures or brings into this state 30 kilograms or more of any of the following substances:

a. 3,4-Methylenedioxymethamphetamine (MDMA);
b. 4-Bromo-2,5-dimethoxyamphetamine;
c. 4-Bromo-2,5-dimethoxyphenethylamine;
d. 2,5-Dimethoxyamphetamine;
e. 2,5-Dimethoxy-4-ethylamphetamine (DOET);
f. N-ethylamphetamine;
g. N-Hydroxy-3,4-methylenedioxyamphetamine;
h. 5-Methoxy-3,4-methylenedioxyamphetamine;
i. 4-methoxyamphetamine;
j. 4-methoxymethamphetamine;
k. 4-Methyl-2,5-dimethoxyamphetamine;
l. 3,4-Methylenedioxy-N-ethylamphetamine;
m.3,4-Methylenedioxyamphetamine;
n. N-dimethylamphetamine; or
o. 3,4,5-Trimethoxyamphetamine,

individually or in any combination of or any mixture containing any substance listed in sub-subparagraphs a.-o., and who knows that the probable result of such manufacture or importation would be the death of any person, commits capital manufacture or importation of Phenethylamines, a capital felony. Any person sentenced for a capital felony under this paragraph shall also be sentenced to pay the maximum fine provided under subparagraph 1.


Cocaine

Possession/Delivery of Cocaine


Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of COCAINE, or of any mixture containing COCAINE, but less than 150 kilograms of COCAINE or any such mixture, commits a felony of the first degree. If the quantity involved:

a. Is 28 grams or more, but less than 200 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 $50,000.00

b. Is 200 grams or more, but less than 400 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 7 years, and the defendant shall be ordered to pay a fine of $100,000.00

c. Is 400 grams or more, but less than 150 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 years and pay a fine of $250,000.00

Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 150 kilograms or more of COCAINE, commits the first degree felony of trafficking in COCAINE. A person who has been convicted of the first degree felony of trafficking in COCAINE shall be punished by life imprisonment and is ineligible for any form of discretionary early release except pardon or executive clemency or conditional medical release. However, if the court determines that, in addition to committing any act specified in this paragraph:

a. The person intentionally killed an individual or counseled, commanded, induced, procured, or caused the intentional killing of an individual and such killing was the result; or

b. The person's conduct in committing that act led to a natural, though not inevitable, lethal result, such person commits the capital felony of trafficking in COCAINE. Any person sentenced for a capital felony under this paragraph shall also be sentenced to pay the maximum fine provided under subparagraph 1.

Any person who knowingly brings into this state 300 kilograms or more of COCAINE, and who knows that the probable result of such importation would be the death of any person, commits capital importation of COCAINE, a capital felony. Any person sentenced for a capital felony under this paragraph shall also be sentenced to pay the maximum fine provided under subparagraph 1.

  • Morphine, Opium, Oxycodone, Hydrocodone, Hydromorphone

 

Possession/Delivery of Morphine, Opium, Oxycodone, Hydrocodone, Hydromorphone

Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 4 grams or more of any MORPHINE, OPIUM, OXYCODONE, HYDROCODONE, HYDROMORPHONE, or any salt, derivative, isomer, or salt of an isomer thereof, including HERION, or 4 grams or more of any mixture containing any such substance, but less than 30 kilograms of such substance or mixture, commits a felony of the first degree. If the quantity involved:

a. Is 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 $50,000.00

b. Is 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 $100,000.00

c. Is 28 grams or more, but less than 30 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of 25 years and pay a fine of $500,000.00


Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 30 kilograms or more of any MORPHINE, OPIUM, OXYCODONE, HYDROCODONE, HYDROMORPHONE, or any salt, derivative, isomer, or salt of an isomer thereof, including heroin, or 30 kilograms or more of any mixture containing any such substance, commits the first degree felony of trafficking in illegal drugs. A person who has been convicted of the first degree felony of trafficking in illegal drugs under this subparagraph shall be punished by life imprisonment and is ineligible for any form of discretionary early release except pardon or executive clemency or conditional medical release. However, if the court determines that, in addition to committing any act specified in this paragraph:

a. The person intentionally killed an individual or counseled, commanded, induced, procured, or caused the intentional killing of an individual and such killing was the result; or

b. The person's conduct in committing that act led to a natural, though not inevitable, lethal result, such person commits the capital felony of trafficking in illegal drugs. Any person sentenced for a capital felony under this paragraph shall also be sentenced to pay the maximum fine provided under subparagraph 1.

Any person who knowingly brings into this state 60 kilograms or more of any MORPHINE, OPIUM, OXYCODONE, HYDROCODONE, HYDROMORPHONE, or any salt, derivative, isomer, or salt of an isomer thereof, including HEROIN, or 60 kilograms or more of any mixture containing any such substance, and who knows that the probable result of such importation would be the death of any person, commits capital importation of illegal drugs, a capital felony. Any person sentenced for a capital felony under this paragraph shall also be sentenced to pay the maximum fine provided under subparagraph 1

  • Phencyclidine (PCP)

 

Possession/Delivery of Phencyclidine (PCP)

Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of PHENCYCLIDINE or of any mixture containing PHENCYCLIDINE, commits a felony of the first degree. If the quantity involved:

a. Is 28 grams or more, but less than 200 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 $50,000.00

b. Is 200 grams or more, but less than 400 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 7 years, and the defendant shall be ordered to pay a fine of $100,000.00

c. Is 400 grams or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 years and pay a fine of $250,000.00

Any person who knowingly brings into this state 800 grams or more of PHENCYCLIDINE or of any mixture containing PHENCYCLIDINE, and who knows that the probable result of such importation would be the death of any person, commits capital importation of PHENCYCLIDINE, a capital felony.

 

Drug and Alcohol Rehab Programs:

Turning Point of Tampa is located in Tampa, Fl. The average time spent is 30 days, but varies based on individual needs. The average cost is $8,950. The program provides individual and group therapy, and a 12-step alcohol rehab program, and provides self-sustained or co-ed living arrangement. Contact Cathy at 1-800-397-3006. www.tpoftampa.com

Alternative Treatment Resolution is located in Clearwater, Fl. The average time spent is 28 days and the program has an average cost of $12,250. The treatment options available includes meditation oriented therapy, an alternative 12 step program, individual and small group counseling, and spa and gym access, with three bedroom apartment living arrangements. Contact 1-800-897-8060. www.jamaicarehab.com

Spencer Recovery Center of Florida is located in St. Petersburg, Fl. The average time spent is 28 days and costs an average of $10,700. The program provides single occupancy living, 3 meals daily, individual and group counseling, and a 12 step program. Contact 1-800-444-4013. www.floridatreatment.com

Choices Recover Center is located in Ft. Pierce, Fl. The program lasts an average of 30 days, but varies depending on the person. The average cost is $12,500, which includes 4 person apartment living, self-sustained living, and individual and group counseling. Contact 1-800-981-9228.

Gulf Coast Recovery is located in Treasure Island, Fl. The program lasts on an average of 30 days and costs around $14,700. The program provides focused group therapy, 4 bedroom home living quarters, self sustaining living, and gym access. Contact 1-800-461-0641. www.gulfcoastrecovery.org

Life Matters is located in West Palm Beach, Fl. The program lasts an average of 30 days and costs $11,200. The program provides single occupancy living (resort style) and includes individual counseling. Contact 1-866-858-9478. www.lifematters.biz

 

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