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Defenses to Drug Possession

February 1, 2015

Being charged with the possession of drugs is frightening. In addition to the legal penalties—whether probation, fines, or incarceration—come the collateral costs. A conviction for a drug offense can deter possible employers, make it more difficult to obtain professional licenses, cause loss of eligibility for welfare benefits or student loans, and more. This means that defenses to a drug-related charge are an essential tool in defending against such charges. A successful defense can result in charges against you being reduced or even dismissed entirely. A criminal defense lawyer experienced in drug offenses can help you to understand these defenses and to choose the strategy that works best for you.

The defenses available to someone charged with drug possession vary depending on the specific facts of the case. However, there are several common defenses available in Florida:

  • Early intervention,
  • Constructive possession,
  • Illegal search and seizure,
  • Lack of knowledge, and
  • Overdose.

Early Intervention

The prosecutor is not required to file charges against a person just because he or she was arrested for drug possession. If you have been arrested, your lawyer may be able to talk with the prosecutor to tell your side of the story, and it is possible that, with your cooperation, charges may be reduced or perhaps not brought at all.

Constructive Possession

A key issue when dealing with drug charges is the question of possession. Under Florida law, there are two kinds of possession: actual and constructive. Actual possession means that a defendant has the drugs on his or her person, such as in a pocket. Constructive possession, on the other hand, refers to situations in which the drugs are in a place where multiple people may have access. Constructive possession requires that the prosecution prove that the defendant had both:

  • Knowledge of the substance’s presence, and
  • Dominion and control over the substance.

If the prosecution cannot prove both of those facts, the state will be unable to convict. Consider these scenarios:

  • You are driving a friend’s car, and a police officer searches the car, revealing a bag of marijuana in the glove compartment. Even though you were not physically holding the marijuana, you can be convicted of possession. However, if the prosecution cannot prove that you knew that the drugs were in the glove compartment, they would not be able to convict you.
  • You and a friend are talking. You see him put a bag of marijuana in his pocket. Though you knew of the presence of the marijuana, you would not be able to be convicted, since you did not exercise any control over the drugs.

Illegal Search and Seizure

For the defense of illegal search and seizure to apply, a defendant must show that law enforcement exceeded the scope of their authority. This can mean that police coerced the defendant into allowing a search, that officers performed a search without a warrant or obtained a warrant in bad faith, that the defendant was arrested without probable cause, or other issues. If this occurred, a lawyer can file a motion to suppress. This means that the evidence that was discovered as a result of that illegal search cannot be used in the prosecution of the case.

Lack of Knowledge

It is presumed that a defendant knows of the illegal nature of a substance found in his or her possession. However, defendants can raise the defense of lack of knowledge to show that they did not know that the substance was of an illicit nature.


The overdose defense is provided for by statute. It states that, if a person has overdosed and needs medical assistance, neither that person nor anyone assisting that person can be prosecuted for possession, if the evidence used in the prosecution was obtained as a result of the overdose and the need for medical attention.

Other Defenses

Depending on the facts of the case, there are many other defenses that may be available. For example, there may be problems regarding the chain of custody, issues with the reliability of witnesses, defects in the procedures used to test the substance to determine whether it was in fact a controlled substance, or any other weaknesses in the state’s case.

If you have been arrested for or charged with drug possession, the advice of an attorney is essential. Please contact West Palm Beach criminal defense attorney William Wallshein for a free consultation.

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