Florida Drug Possession Laws
Drug possession is an offense by someone who did not manufacture, distribute, or sell the controlled substance. Instead, the defendant likely held the controlled substance for personal use. Possession of most controlled substances specified by Florida state laws, except for the medical use of marijuana through a doctor’s recommendation (beginning Jan. 3, 2017), may be charged as a felony. The Florida legislature also recently added bath salts and “spice” to the list of banned substances. State law allows a first degree misdemeanor charge for simple possession of cannabis — marijuana — in an amount less than twenty grams (unless it is legally obtained for medical use).
The charge of “possession with intent to sell” includes all legal elements of simple possession, but also requires proof of the defendant’s intent to sell or distribute the drugs. The specific charge depends on the type of controlled substance involved in the crime. For example, a state prosecutor may bring a third-degree felony charge for marijuana possession with intent to sell. In contrast, possession of cocaine with intent to sell may be charged as a second-degree felony.
Florida Drug Possession Laws at a Glance
Florida Statutes Section 893.13
*Florida’s medical marijuana law will appear in the state constitution (with regulations to follow) when it takes effect on January 3, 2017.
Statutory Elements of a Drug Possession Charge:
- The illegal nature of the controlled substance: The prosecutor must present evidence that the seized material is a controlled substance as defined by Florida law. This element generally requires scientific analysis by a crime lab.
- The defendant’s knowledge of the drug: The prosecutor must show that the defendant actually knew or should have known about the illicit nature of the controlled substance and its presence.
- The defendant’s control of the drug: The prosecutor must prove that the defendant had control over the location and presence of the controlled substance. A prosecutor likely has a more straightforward case if the defendant had the drugs on the defendant’s body or in a container held by the defendant.
Drug Possession Charges
- First Degree Misdemeanor Possession
- Up to 20 g marijuana (except for legally possessed medical marijuana)
- Misdemeanor offender with at least 4 priors is subject to enhanced penalties
- Third Degree Felony Possession
- More than 20g marijuana (except for legally possessed medical marijuana); up to 28g cocaine; up to 10g MDMA/ecstasy; up to 1g LSD; up to 4g heroin/opiate
- First Degree Felony Possession
- More than 25lbs. marijuana; more than 28g cocaine; more than 10g MDMA/ecstasy; more than 1g LSD; more than 4g heroin/opiate
- Medical Marijuana
- *Specific regulations, including maximum amount allowed per patient, are not yet available. You can follow the developments as they are made available by the Florida Office of Compassionate Use.
- First-Degree Misdemeanor: Up to 1 year in jail, plus court costs; those with at least 4 prior convictions may be sentenced to 1 year in jail, mandatory treatment, or home detention of up to 1 year.
- Third-Degree Felony: Up to 5 years in prison
- First-Degree Felony: Up to 30 years in prison and up to $250,000 in fines; mandatory minimums apply (depending on the type of drug and amounts)
- Lack of knowledge that the material was a controlled substance
- A valid prescription from a medical professional
- Entrapment arranged by police
- Fourth Amendment violation due to unlawful search and seizure
- Use of cannabis in accordance with Florida’s medical marijuana law
Note: State laws are always subject to change. While we strive to provide the most current information available, please consult with a Florida criminal defense attorney or conduct your own legal research to verify the state law(s) you are researching.
- Drug Possession Defenses
- Florida Cocaine Laws
- Florida Heroin Laws
- Possession with the Intent to Distribute
- Drug Possession Defenses
Get a Free Initial Review of Your Drug Possession Case
Although medical marijuana is legal in Florida, possession of the herb without a valid license (or possession of any other controlled substance) still carries a heavy penalty upon conviction. If you are charged with a drug possession crime, you may need the help of an attorney. Get a free initial legal evaluation of your case at McLean & Mitchell Criminal Defense.