Drug charges are most commonly based on a person’s possession of a controlled substance. As we have discussed elsewhere on this site, the government can rely on mere possession to successfully bring Drug Trafficking charges against defendants if a threshold amount of a controlled substance is present. However, trafficking laws are NOT the only tool at the disposal of the government when it comes to enhancing penalties for those who possess controlled substances. The state of Florida allows law enforcement officers and prosecutors the opportunity to raise the stakes for what is effectively a thought crime: possessing a controlled substance with the intent to sell or distribute it at some point in the future.
If you or a loved one is accused of an enhanced drug crime such as possession with intent to sell or deliver, it is critical to contact an experienced Tampa defense attorney as soon as possible. Only then can you hope to be on equal footing with law enforcement officers who have years of experience enhancing drug charges by making users seem like dealers.
Hiring an attorney who is experienced and knowledgeable in defending drug charges is an option you have. Joel Elsea has experience defending clients who have been accused of drug crimes in the Tampa Bay area, as well as years of experience building and prosecuting these cases. Attorney Joel Elsea’s experience on both sides of the law can help prepare to you formulate a defense for your drug charge today. Contact Elsea Law Firm, P.A. today to schedule your free consultation.
According to Florida Statute §893.13, any possession of a controlled substance is a crime. Florida’s laws punish those who sell, or even give away for free, the same controlled substances by increasing the severity of the act. An accusation of possessing drugs while simultaneously intending to sell or deliver those drugs is a quantifiably more serious charge than simple possession under Florida’s statutory scheme.
If mere possession of a certain substance is a misdemeanor (like cannabis), then possession with intent to sell or deliver that substance (PWITSD CANN., as it is often seen on a guideline scoresheet) becomes a third degree felony. If mere possession of a certain substances is already a third degree felony (like cocaine), then possessing it with the intent to sell or deliver becomes more serious second degree felony, tripling the maximum sentence from 5 years to 15 years in the Florida Department of Corrections.
As with any criminal matter, the specific facts of a case and defendant’s criminal history can affect the penalty upon a conviction.
There are several factors that may be considered to determine whether the charges are filed as “simple” possession or possession with intent to sell or distribute. Packaging, quantity, the presence of notes or a ledger, and observed behavior of a suspect are just some of these factors. These factors are used by law enforcement and prosecutors to establish a defendant’s intention to commit the future act of distribution or sale. But remember, depending on the quantity of the drug in question, it is possible the charges could be increased to possessing a felony amount of a misdemeanor substance or drug trafficking charges, even if no other indicators of selling or distributing are present. If you or a loved one has been charged with a drug crime, it is critical to contact a Tampa Drug Crime Defense Lawyer as soon as possible to obtain a free consultation and begin strategizing your defense strategy.
No matter where your possession with intent case started, they all end in the same place: a court of law. A PWITSD case that seems strong to an arresting officer or detective in the street may not stand under the scrutiny of a judge and an experienced defense team. The Florida Evidence Code and decades of binding and persuasive legal precedent are tools that, if properly employed, can increase your chances of a successful defense. A drug defense attorney in Tampa who can effectively communicate legal arguments to the judge and prosecutor and factual arguments to a jury is an ally you need in your corner.
The prosecution has the burden to prove every element of every charge beyond and to the exclusion of a reasonable doubt. With these charges, the two elements are 1. Possession of a controlled substance and 2. Intent to sell or distribute that substance in the future.
If the state, for example, cannot prove possession, then the issue of intent becomes moot as the charge falls apart. The legal definition of possession has a long, evolving, and nuanced history. A look at the Florida Criminal Jury Instructions Chapter 25.2 reveals the lens through which a jury must view evidence in any case of possession. It defines “possession” and explains circumstances in which a person can possess something that is not on their person. This is what is commonly known as “constructive possession.”
Florida Standard Jury Instruction 25.7
To prove a defendant “possessed a substance,” the State must prove beyond a reasonable doubt that he or she a) knew of the existence of the substance and b) intentionally exercised control over that substance.
Control can be exercised over a substance whether the substance is carried on a person, near a person, or in a completely separate location. Mere proximity to a substance does not establish that the person intentionally exercised control over the substance in the absence of additional evidence. Control can be established by proof that defendant had direct personal power to control the substance or the present ability to direct its control by another.
Possession of a substance may be sole or joint, that is, two or more persons may possess a substance.
While constructive possession cases can typically be harder to prove than actual possession cases, there is NOT a rule prohibiting a case of constructive possession from being enhanced to possession of a controlled substance with the intent to sell or deliver.
At issue in all cases of possession with intent to sell or deliver is the proof of the defendant’s intent. The police and the prosecution will look for opportunities to show that details surrounding the arrest are actually evidence of criminal intent to distribute controlled substances to others. An effective defense attorney will be able to show that the same details are consistent with personal use. Here are some circumstances common to many cases of possession of a controlled substance with intent to sell or deliver.
A skilled criminal defense attorney can discuss with you how to address these factors if they are present in your case.
An experienced Tampa drug attorney can be a pivotal ally in fighting a possession with intent to sell or deliver charge in Florida. Elsea Law Firm, P.A. has years of experience in navigating drug charges and will work to achieve a successful outcome for you. If you or a loved one has been arrested for or charged with a drug crime, we are here to help you navigate the criminal justice system. Call Elsea Law Firm, P.A. today or fill out our contact form for a free consultation request.