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Possession of Heroin in Florida

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

In Florida, heroin is a Schedule I controlled substance and it is a Third Degree Felony to possess less than 4 grams of heroin.

A Schedule I controlled substance in Florida, heroin is considered to have a high potential for abuse and no currently accepted medical use in the State of Florida or the United States.

Heroin Trafficking Threshold

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

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

Penalties for Heroin Possession

The crime of Possession of Heroin 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 Heroin 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 Heroin 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 Heroin will have their driver’s license or driving privilege suspended for six months by the Florida DHSMV.

Defenses to Heroin 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 Heroin are:

Constructive Possession

If the heroin 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 Heroin: [1]

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

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

Scenario 1: You were stopped while driving a friend’s car and police find heroin in the glove box, they would be unable to convict you of Possession of Heroin unless they had some proof that you knew the heroin was present.
Scenario 2: You were driving your car, had a friend with you, and your friend takes a bag of heroin 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 Heroin because even though you knew the heroin 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 Heroin if you can prove that you did not know the substance in your possession was heroin. 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 Heroin for a person to briefly possess heroin without a prescription for the sole purpose of legally disposing of it. [4]

In order to raise a legal disposal defense, the heroin must have been acquired without an unlawful intent, possessed for a brief period of time, solely for the purpose of disposing of the heroin 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 Heroin 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 heroin is lawfully prescribed, this defense would seldom be available. However, in the rare instance where a valid heroin prescription can be produced that pre-dated your arrest, you will have an absolute defense to the heroin charge. [6]

Importantly, the Prescription Defense is not only available to the heroin prescription holder but also any individual authorized by the heroin 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 heroin from the true owner. Under such circumstances, the person is not considered to be in legal possession of the heroin because the person never exercised complete dominion and control over the heroin. [8]

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

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