Text Now 407-540-1551 Free Consultation

Possession of Fentanyl in Florida

Florida law requires that your driver’s license be suspended for six months upon conviction.

In Florida, pure fentanyl is a Schedule II controlled substance and fentanyl derivatives are a Scheduled I controlled substance. It is a Third Degree Felony to possess less than 4 grams of fentanyl.

Fentanyl is considered to have a high potential for abuse and no currently accepted medical use in the State of Florida or the United States.

Fentanyl Trafficking Threshold

Possession of 4 grams or more of fentanyl is prosecuted as Trafficking in Fentanyl. Importantly, the weight is not determined by how much pure fentanyl is in a mixture, but by how much the mixture containing the fentanyl weighs.

As a result, a person could have a mixture that contain less than 4 grams of pure fentanyl, but because the mixture’s total weight is more than 4 grams, the person would be guilty of Trafficking in Fentanyl in Florida and subject to a minimum-mandatory prison sentence.

Penalties for Fentanyl Possession

The crime of Possession of Fentanyl is a Third Degree Felony in Florida and punishable by up to five (5) years in prison, five (5) years of probation, and a $5,000 fine.

Possession of Fentanyl is assigned a Level 3 offense severity ranking under Florida’s Criminal Punishment Code and a judge may sentence a person convicted of Possession of Fentanyl to probation, but may also impose a sentence up to the statutory maximum of five years in prison.

Driver License Suspension

Pursuant to Florida Statute 322.055, any person convicted of Possession of Fentanyl will have their driver’s license or driving privilege suspended for six months by the Florida DHSMV.

Defenses to Fentanyl Possession

In addition to the pretrial defenses and trial defenses that can be raised in any criminal case, specific or common defenses to the crime of Possession of Fentanyl are:

Constructive Possession

If the fentanyl was found in a place where more than one person had access, the prosecutor would have to comply with the law of constructive possession, which requires the prosecutor to prove the following two elements before you can be convicted of Possession of Fentanyl: [1]

  1. Knowledge of the fentanyl’s presence;
  2. Dominion and control over the fentanyl, which means more than the mere ability to reach out and touch the fentanyl. [2]

Below are scenarios where it can be argued the prosecutor could not meet their burden of proving constructive Possession of Fentanyl.

Scenario 1: You were stopped while driving a friend’s car and police find fentanyl in the glove box, they would be unable to convict you of Possession of Fentanyl unless they had some proof that you knew the fentanyl was present.
Scenario 2: You were driving your car, had a friend with you, and your friend takes a bag of fentanyl and places it at his feet. The police then stop you, see your friend’s bag, and arrest both of you. They should be unable to convict you of Possession of Fentanyl because even though you knew the fentanyl was present, your friend is the only person who exercised dominion and control over it.

Illegal Search and Seizure

More often than not, law enforcement exceed the scope of their authority and require people to submit to a vehicle, home, or body search; or they may coerce a person into agreeing to a search. If we can prove that either instance occurred, the courts will suppress the resulting evidence as having been illegally obtained.

Other suppression possibilities that may present themselves are: if law enforcement obtained a search warrant in bad faith or if you were arrested without probable cause.

Lack of Knowledge

It is an affirmative defense to the crime of Possession of Fentanyl if you can prove that you did not know the substance in your possession was fentanyl. Importantly, this defense requires you to testify to your lack of knowledge of the substance’s illegal nature. [3]

It is an affirmative defense to the charge of Possession of Fentanyl for a person to briefly possess fentanyl without a prescription for the sole purpose of legally disposing of it. [4]

In order to raise a legal disposal defense, the fentanyl must have been acquired without an unlawful intent, possessed for a brief period of time, solely for the purpose of disposing of the fentanyl without delay.

Overdose Defense

Any person who is experiencing a drug-related overdose and needs medical assistance, or a person assisting the person that needs medical assistance, is immune from prosecution for Possession of Fentanyl if it can be shown the evidence was obtained as a result of the overdose and need for medical assistance. [5]

Prescription Defense

Given how rarely fentanyl is lawfully prescribed, this defense would seldom be available. However, in the rare instance where a valid fentanyl prescription can be produced that pre-dated your arrest, you will have an absolute defense to the fentanyl charge. [6]

Importantly, the Prescription Defense is not only available to the fentanyl prescription holder but also any individual authorized by the fentanyl prescription holder to hold the medications on his or her behalf. [7]

Temporary Possession

The defense of temporary possession can be raised where a person takes momentary, temporary, or transitory possession of fentanyl from the true owner. Under such circumstances, the person is not considered to be in legal possession of the fentanyl because the person never exercised complete dominion and control over the fentanyl. [8]

Examples of temporary possession are when a person is handed fentanyl by the true owner and asked to hide it during a police encounter, such as a traffic stop; or when holding fentanyl in the presence of a drug dealer for the sole purpose of verifying or testing the fentanyl prior to purchasing it; or when passing the fentanyl from the owner to a third person.

Contact Criminal Defense Lawyer Richard Hornsby

If you have been charged or arrested with the crime of Possession of Fentanyl in Central Florida or the Greater Orlando area, contact Orlando Criminal Defense Lawyer today.

The initial consultation is free and I am always available to advise you on the proper course of action that can be taken.

References