You don’t have to have drugs on your person to be prosecuted for drug possession. If drugs are found on your person, that is referred to as “actual” possession, and you can be prosecuted. However, as long as the controlled substance at issue is within proximity to you (e.g. in the car, near where you’re standing, etc.), the government may try and prosecute you under a theory of “constructive” possession. These two types of possession are written into Florida’s laws, Fla. Stat. § 893.13, and have been upheld by the courts. Regardless of which charge you are facing, our Hollywood drug possession lawyers are prepared to fight for you.
The government does not have to send the alleged drugs to a lab for chemical testing or conduct a field test on scene. While that does happen in many cases, it’s not required. The government is permitted to present an expert witness to identify a substance as a drug in court. This is most commonly done in marijuana possession cases. In some instances, the expert does not even have to have a scientific or chemical degree, advanced training, or be affiliated with law enforcement.
In 2012, in the case of Brooks v. State, the Florida Supreme Court upheld the state’s tactic of putting a known, experienced crack cocaine dealer on the stand as an expert witness to identify a substance as crack cocaine. There are a variety of challenges that can be made in those instances. Often, a successful challenge can mean the difference between an acquittal or a conviction. Fischer Redavid PLLC has been on the cutting edge of these types of challenges.
The State of Florida has more substances classified as drugs than most people realize. They are broken down into five difference schedules, or categories. The schedules then correlate to the severity of a criminal offense for possessing them, and potential penalties. Schedule I drugs (i.e. heroin) are thought to have a higher potential for abuse than say, for example, Schedule III drugs (i.e. Anabolic Steroids).
The Federal Government also classifies drugs in five “schedules,” the most serious being Schedule I, which includes heroin, LSD, marijuana, MDMA and Ecstasy. Prescription pain killers such as Vicodin and OxyContin fall into Schedule II, along with cocaine. Even things such as Tylenol with Codeine are listed, under Schedule III.
Either getting caught in possession of a controlled substance, or being falsely accused of possessing drugs (i.e. cops planting evidence), can lead to serious criminal prosecutions. The key is to try and derail those prosecutions with meritorious legal challenges. Your state and federal constitutional rights may very well come back to protect you — if your attorney knows what he or she is doing and what to look for. It is not uncommon to have confessions, statements, videos, chemical tests, or the physical evidence thrown out of court. Once the prosecution is dealt a fatal blow like that, their case usually disappears.