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Florida law provides that it is illegal to use or be in possession of drug paraphernalia as that term is defined under Florida law. Florida Statute 893.147(1) provides that it is illegal to use or be in possession of drug paraphernalia.
 
Drug paraphernalia is a broad term and can essentially be anything used in the planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, or inhaling of a controlled substance.

Penalties for a Possession of Drug Paraphernalia Charge

Florida Possession of Drug Paraphernalia is classified as a first degree misdemeanor punishable by up to:
  1. One year in the county jail;
  2. One year of supervised probation;
  3. A $1,000 fine

What Constitutes "Possession" in Florida?

Actual Possession
In Florida, actual possession is when the item is physically found on your person. Specifically, it might be found in your pocket, in your hand, in your mouth, or otherwise physically on your person.

Constructive Possession
In Florida, constructive possession is when the item is not physically on your person but is close enough to you that it can reasonably be assumed that you were in possession of it.

Essentially, it will be necessary for the State to prove that you could exercise dominion and control over the item

It is much more difficult for the State to prove constructive possession cases than actual possession cases.

Defenses to a Possession of Drug Paraphernalia Charge

In addition to factual defenses that would be raised at trial to show reasonable doubt as to the crime alleged, some common defenses to a Possession of Drug Paraphernalia charge in Florida include:

The police violated your rights
It is critical to determine whether your constitutional rights were violated by police. From the moment of your first encounter with the police, their actions must be heavily scrutinized to ensure they did not violate your constitutional rights to:
  1. Privacy;
  2. The right to remain silent;
  3. The right to be free from unlawful searches and seizures
If any violation of your rights occurred, it may be grounds to suppress all evidence in a Possession of Drug Paraphernalia case in Florida.
 
This will be accomplished by filing and getting a Judge to grant a Motion to Suppress.

The item was not "drug paraphernalia" as defined under Florida law
Many household items as well as items used to consume tobacco may be considered to be drug paraphernalia at first glance. For example, it is not illegal to possess a tobacco pipe nor is it illegal to possess rolling papers or baggies.
 
Factors such as the conditions under which the item was found and whether there was any drug residue present on the item must be explored to determine whether the item is actually drug paraphernalia or an item used for the lawful consumption of tobacco or other household item.

Possession cannot be proven
While actual Possession of Drug Paraphernalia cases tend to be fairly straightforward as it may be hard to argue that the item was not yours and that you were not in possession of it if it was found in your hand or in your pocket, constructive Possession of Drug Paraphernalia cases, on the other hand, tend to be rather difficult for the State to prove.
 
A classic example of this is when police find drug paraphernalia in a car or house. Any number of factual situations may make it extremely difficult for the State to prove the Possession of Drug Paraphernalia charge against you. In such situations, details matter!
 
Details such as whether or not the car or residence belongs to you, whether or not there were other people in the car or residence, whether or not other people had access to the car or residence, or whether or not other people had been using the car or residence prior to you are all very important factors that need to be addressed. 
Contact Orlando Criminal Defense Attorney Chris Kaigle if you’ve been charged with Possession of Drug Paraphernalia in Florida!
(407) 545-6416