Man under arrest for drug possession

Understanding Actual vs. Constructive Possession of Drugs

  • On behalf of Mike G Law posted in on Thursday, May 27, 2021

Florida has some of the toughest drug laws in the country. Being found guilty of drug possession in Florida can lead to severe penalties—including heavy fines, extensive jail time, and other consequences that can impact the rest of your life.

And, in Florida, it is possible to be arrested for a drug offense even if you did not “own” an illegal substance or have it on your person. That is because of the way the law defines possession. 

Drug possession is actually split into two types of charges: actual possession and constructive possession. If you or a loved one is facing criminal drug charges, it is important to know the difference between actual and constructive possession, as well as what to do to protect your legal rights.

Our team will answer your questions about possession laws and explain how criminal defense attorney Mike G can help.

First, what is possession? 

According to Florida Statute 893.13, it is illegal to have control of or be in possession of a controlled substance without a doctor’s prescription. Some examples of controlled substances include, but are not limited to:

  • Marijuana
  • Cocaine
  • Heroin
  • Narcotic painkillers like fentanyl or morphine (without a prescription)

See Florida Statute 893.03 for a full list of controlled substances.

Possession is then divided into two categories: actual possession and constructive possession.

Understanding Actual Possession

Actual possession refers to situations when an individual is holding a controlled substance, has it in their bag, purse, or pocket, or has an illegal drug in immediate reach.

In cases of actual possession, a person has singular control over an illegal drug. Police officers may charge you with actual possession if they find a drug during a pat-down or body search.

Actual possession charges do not apply when someone is in control of a substance that they were legally prescribed. However, it may apply to someone who is in possession of a substance that someone else has a prescription for—so you may be charged with actual possession if you are holding prescription medicine that belongs to a friend.

Understanding Constructive Possession

Constructive possession is trickier to understand—it includes situations where an individual knows of illegal drugs and theoretically has control over them, such as having the key to a lockbox where drugs are stored.

Under constructive possession, it is not required that someone have an illegal drug on their person. That means you may be arrested for possession even if you are not holding a controlled substance or have one nearby.

Here are a few examples where someone may be charged with constructive possession:

  • You are riding in your friend’s car, and your friend is pulled over for speeding. The police officer smells marijuana and searches the vehicle with probable cause. The officer discovers a bag of marijuana in the trunk. Since you were in the car and may have been able to access the marijuana, you may face charges for constructive possession of drugs.
  • You are at a house party, and the police arrive with a warrant to search the home. They discover that several partygoers have been using drugs in the backyard. Even if you did not participate, you may still be charged with constructive possession because you had knowledge of the drugs.
  • You share a locker with a coworker. Your coworker uses the locker to store drugs. The boss catches wind of the drugs and reports them to the police. You and your coworker both may face constructive possession charges because the prosecution argues you each had access to and control of the drugs.

Note: Both actual and constructive possession differ from drug trafficking. Trafficking occurs when you sell, distribute, or manufacture an illegal substance. However, if police suspect you were intending to distribute a drug, you may be charged with both trafficking and possession.

Legal Consequences & Penalties for Possession

Being charged with actual or constructive possession can lead to severe legal repercussions.

While the exact consequences will vary from case to case, they often include jail time, fines, and mandatory probation or drug rehab programs. These consequences can often have a lifelong impact and affect where you are able to live—or even if you are able to have a driver’s license.

Jail Sentences

You may face imprisonment if you are found guilty of possession of an illegal substance.

Possession of Schedule I, II, III, and IV drugs (like marijuana, heroin, narcotics, etc.) are considered third-degree felonies and may lead to up to 5 years in prison.

Possession of Schedule V drugs (such as medications with small amounts of narcotics) is a first-degree misdemeanor and may result in up to a year in prison.

Sentences may be even higher if you are also charged with drug trafficking or another related crime. Plus, if you are found guilty of constructive possession, the prosecution could make an argument for charging you with distribution or trafficking if others also had access to the drugs—which could bump misdemeanors up to felonies.

Fines

Like jail sentences, the fines associated with possession charges will depend on the substance(s) in question. Misdemeanor offenses may result in fines of up to $1,000, while felonies can range from $1,000 to $5,000. 

Like jail sentences, you may be hit with more fines if you are also found guilty of another offense at the same time, or if you are found in violation of probation

Losing Licenses & Housing Opportunities

Possession charges can have impacts beyond just paying a fine or spending time behind bars. You could face additional consequences, like:

  • Losing licenses. You may lose your driver’s license or a professional license (in fields like medicine, education, and law).
  • Losing housing opportunities. Drug offenses stay on your record—and many housing complexes do not allow felons to live on the premises.
  • Rehab. The court may order you to complete a drug or alcohol treatment program, sometimes instead of serving time.
  • Probation. It is common for people to face probation terms after being released from jail or a rehab program. Probation often requires regular check-ins with a probation officer, living only in certain areas, and complying with strict behavior rules.

All in all, being charged with a drug offense can have severe impacts on the rest of your life, especially when the courts try to push maximum penalties. But instead of going down without a fight, a defense attorney like Mike G can help you get a fair shake.

How a Defense Attorney Can Help

You have rights—never forget that. A defense attorney can advocate on your behalf, help you navigate the complex legal process, and stand up against prosecutors who may not give you a fair trial.

For example, Mike G can help determine if police searches were performed unconstitutionally. That may be the case if an officer searches a place of residence without a warrant. Even if they find an illegal substance, they cannot use it as evidence in a court of law.

In constructive possession cases, the prosecutor may say you had knowledge of an illegal substance—but prosecutors often cannot prove that to be true, even if they try to argue that you did.

At Mike G Law, we know how prosecutors operate. We know just how they will try your case—and we know how to respond to keep them from violating your legal rights.

Let Mike G Fight for You

If you have been charged with actual or constructive possession, do not try to handle the courts alone. Instead, contact us at Mike G Law for aid. We offer a FREE initial consultation to discuss the facts of your case and create a strong plan of action.

Do not try to go at this alone—let our experienced legal team help.


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