West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

          The penalties are severe for drug trafficking in Florida.  For example, if a person is convicted in State Court of trafficking in 200 grams or more of cocaine but less than 400 grams, that person must be sentenced to a mandatory minimum term of imprisonment of 7 years and ordered to pay a fine of $100,000.  And if someone is convicted of trafficking in 400 grams or more of cocaine but less than 150 kilograms, that individual must be sentenced to a mandatory minimum term of imprisonment of 15 years and ordered to pay a fine of $250,000.

          One way of avoiding such mandatory penalties is through something called substantial assistance which has been defined as assistance "directed to the investigation and prosecution of criminal activities by persons other than the defendant."

          Florida statute section 893.135(4) provides that "[t]he state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in the identification, arrest, or conviction of any of that person's accomplices, accessories, coconspirators, or principals or of any other person engaged in trafficking in controlled substances. . . .  The judge hearing the motion may reduce or suspend the sentence if the judge finds that the defendant rendered such substantial assistance."

          All is well and good if an individual provides substantial assistance and in return receives a reduction in sentence. Some people, though, are unable to provide the prosecutor with such information.  Others are simply unwilling to do so.  In either case, substantial assistance is of no help to them.

          Sometimes, however, a defendant provides a prosecutor with information about the criminal activities of others but still does not receive a sentence reduction because the prosecutor or the judge does not believe that his assistance warrants it since the information turned out to be of little value.  It is particularly frustrating when that occurs because the accused individual has, as it were, stuck his neck out by providing information about others, yet he receives nothing in return.  It is for that reason that some defendants choose not to provide substantial assistance.

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          In order to prove someone guilty of the crime of trafficking in cocaine, a prosecutor must establish that the accused individual knowingly was in either actual possession or constructive possession of 28 grams or more of cocaine.  To prove constructive possession, the prosecutor has to show the following two things beyond a reasonable doubt:

1. The defendant knew of the presence of the cocaine; and
2. The defendant was able to exercise dominion and control over the cocaine.

          Proving these two things can sometimes be quite difficult, especially when the cocaine is located in a jointly-occupied automobile.  That was the situation in the case of Culver v. State of Florida.

          In that particular case, Ms. Culver was driving her car and had a passenger with her when the police stopped her.  After a drug-sniffing dog arrived and alerted to the presence of contraband inside Culver's vehicle, the car was searched, and a paper bag containing 33.45 grams of crack cocaine was found behind the passenger seat.  Culver was eventually charged with trafficking in cocaine.

          At her trial, Culver argued that the prosecutor had not established that she was in possession of the crack cocaine found in her vehicle due to the lack of evidence showing that she had knowledge of the presence of the cocaine or that she had dominion and control over it.  Nevertheless, Culver was convicted of trafficking in cocaine.

          On appeal, however, the court hearing her case reversed her conviction because the prosecutor failed to present any evidence linking Culver to the cocaine other than the fact that she was close to it while riding in her car.  The appellate court stated:

"Ms. Culver pointed out that her passenger could have put the brown paper bag behind the passenger seat after Ms. Culver had left the car.  Indeed, both the deputy who made the stop and the K-9 officer who was assigned to watch the passenger expressed concern about the passenger's continuing movements inside the vehicle after the stop.  We note that the [prosecutor] did not present any fingerprint evidence, admissions, eyewitness testimony, or other evidence tending to establish that Ms. Culver had dominion and control over the brown paper bag or the plastic baggie hidden inside it.  For example, the [prosecutor] did not present evidence showing that the law enforcement officers saw Ms. Culver in possession of the brown paper bag, that the brown paper bag was already behind the passenger seat when Ms. Culver left the vehicle, or that the brown paper bag was found inside or in close proximity to Ms. Culver's personal property."

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          During the last few years, I have represented several clients in both State and Federal Court who have been charged with growing marijuana plants in their homes.  Therefore, I was particularly interested to learn that on July 1, 2008 a new law went into effect in Florida called the Marijuana Grow House Eradication Act.  The following is a news article about that Act:

          TALLAHASSEE, Fla. -- Attorney General Bill McCollum announced Tuesday that the Marijuana Grow House Eradication Act has been signed into law, giving Florida’s prosecutors and law enforcement essential tools to combat for-profit growers of marijuana.

The New Law

          The new law, sponsored by Senator Steve Oelrich (R-Gainesville) and Representative Nick Thompson (R-Ft. Myers), passed as House Bill 173 during the 2008 Legislative Session and was signed into law by Governor Charlie Crist Tuesday. The bill was developed because of the increasing number of grow houses operating in the state and violent crime which tend to be associated with these operations.

          “Grow houses are not only furthering this dangerous drug trade within our state, they are bringing violent crime into our neighborhoods,” said Attorney General McCollum. “This new law will help protect our families and communities.”

          The new law makes it a second-degree felony to grow 25 or more plants, targeting for-profit growers who exploit Florida’s previous threshold of 300 plants. The law will also make it a third-degree felony to own a house for the purpose of cultivating, packaging and distributing marijuana and a first-degree felony to grow 25 or more plants in a home with children present.

          “Marijuana is the most commonly used illegal drug in America and we must take a stand against the for-profit growers who were previously exploiting higher thresholds,” said Sen. Oelrich. “By lowering the number of plants necessary for criminal charges, we’ve given Florida’s authorities valuable tools in the fight against these criminal operations.”

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According to Florida law, the term "drug paraphernalia" includes many different types of devices that can be used to consume or to make controlled substances such as cocaine, marijuana, and hashish.  This article contains a list of 19 such devices.

1.  Scales and balances used to weigh or measure controlled substances.

2.  Blenders, bowls, spoons, and mixing devices used to make controlled substances.

3.  Capsules, balloons, and envelopes that are used for packaging small amounts of controlled substances.

4.  Syringes and needles that are used to inject controlled substances into the human body.

Objects used or designed for use in ingesting or inhaling controlled substances into the human body including:

5.  Metal or wooden pipes.

6.  Water pipes.

7.  Smoking masks.

8.  Roach clips.

9.  Miniature cocaine spoons.

10.  Carburetor pipes.

11.  Electric pipes.

12.  Air-driven pipes.

13.  Bongs.

14.  A "cracker" which is a small metal or plastic device that contains a pin that may be used to expel nitrous oxide from a container.

15.  A "whip-it" which is a device that may be used to expel nitrous oxide.

16.  A tank.

17.  A hose or tube.

18.  A 2-liter-type soda bottle.

19.  Duct tape.

Given the fact that I drink quite a bit of soda from 2-liter soda bottles, number 18 on the list causes me a little concern.

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When the police search a car and find drugs such as marijuana or cocaine, the person located closest to the drugs is often arrested even though there were other people located in the automobile just before the car was searched.  In that situation, the person who was arrested may well have a good argument that he is not guilty of possessing the narcotics if the prosecutor is unable to prove that he was in "constructive possession" of the drugs.

In order to prove that someone is in constructive possession of narcotics, a prosecutor in Florida must show that the accused individual:

1.  Had dominion and control over the drugs;

2.  Knew of its presence;

3.  Had the ability to maintain control over the narcotics; and

4.  Had knowledge of its illicit nature.

When drugs are found in a car containing more than one person, a jury is not permitted to simply infer that the accused individual knew about the presence of the narcotics nor is it permitted to infer that he had the ability to maintain control over the drugs.  Instead, the prosecution is required to present independent evidence that the individual knew about the presence of the narcotics and that he had the ability to maintain control over them.  Such evidence might consist of statements made by the accused to the police or evidence that that individual's DNA or fingerprints were located on the drugs.  But unless such evidence is presented at trial, the accused individual should be found not guilty.

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I am sometimes contacted by individuals who have been charged with the crime of possessing less than 20 grams of marijuana.  In Florida, that crime is a misdemeanor.   Often these individuals ask me if they can resolve their case quickly by simply going to court and pleading guilty.  I explain to them that although they may do that, it is probably not a good idea since their driver's license will be suspended by the Florida Department of Highway Safety and Motor Vehicles for 2 years if they are convicted of that particular offense.

If the case cannot be won at trial or at the pretrial stage (by, for example, filing a motion to suppress evidence), then it is essential that a person facing such a charge not be convicted.  Instead, his or her lawyer should try to get the prosecutor or judge to withhold adjudication or else try to get his client accepted into a pretrial diversion program so that the charge will eventually be dropped by the prosecutor's office.

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Federal drug laws can sometimes lead to paradoxical results.  Consider the following story from the Drug Law Blog:

The United States Gets Tough on Methamphetamine By Locking Up All Its Cold Medicine, Forcing Tweakers To Import Speed From Mexico Instead and Messing Up the Formula For Nyquil. In March, President Bush signed the renewal of the Patriot Act, which included the Combat Methamphetamine Act. As a result of that piece of legislation, drugs like Sudafed that contain pseudoephedrine, which can be used to make methamphetamine, had to be put behind the counter of pharmacies. The result is that domestic meth production has indeed fallen, but much of the slack has been taken up by skyrocketing production of meth south of the border. Not only that: they changed the formula in Nyquil to take out the pseudoephedrine so they wouldn't have to put it behind the counter! As the blog The Consumerist noted: "Nyquil has ditched the decongestant pseudoephedrine in favor of phenylephrine and doxylamine succinate. Neither apparently works as effectively as the pseudoephedrine, either on a sick person's nose, or in the crusty coffee machine carafe of the apocryphal neighborhood meth cooker."

Florida drug offense lawyer Ronald Chapman has been representing people accused of committing drug crimes since 1990. You can read more about Mr. Chapman’s experience as a Florida drug offense attorney as well as review news articles about some of his cases.  Some of the types of cases and issues that Mr. Chapman has handled since 1990 include:

• Death Penalty Cases
• Assault and Battery Cases
• DUI Cases
• Drug Cases
• Sex Crimes Cases
• Sealing & Expunging Criminal Records
• Bond|Bail
• Mistaken Identification and Wrongful Conviction
• Police Interrogations
• Sentencing

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