What Is Constructive Possession?

In Florida, a person can be charged with drug possession even if they don’t have drugs with them. This is called constructive possession. Keep reading for more information.

Florida Drug Laws

To understand constructive possession, it’s important to have an understanding of how drug charges are prosecuted. Florida has some of the strictest drug laws in the country, and drug-related crimes account for most arrests.

According to the law, these crimes are divided up into schedules which are classifications of substances that determine the severity of punishment.

  • Schedule I: Includes substances with high potential for addiction and abuse with no medical applications. Examples: heroin, lysergic acid diethylamide (LSD), cannabis (marijuana), and 3,4 Methylenedioxymethamphetamine (MDMA or ecstasy)
  • Schedule II: Includes substances with high potential for abuse with restricted use for medical treatment. Examples: cocaine, opium, and hydrocodone
  • Schedule III: Includes substances with less potential for abuse than those listed in Schedules I and II. Examples: anabolic steroids, ketamine, nalorphine, and dronabinol (synthetic THC)
  • Schedule IV: Includes substances with low potential for addiction with accepted medical uses. Examples: Xanax, Valium, Klonopin, and Ativan
  • Schedule V: Includes substances with the lowest potential for abuse relative to the previous categories with widely accepted medical uses. Examples: codeine, ethylmorphine, dihydrocodeine, and diphenoxylate

Based on the above schedules, there may be harsher penalties for possessing or distributing certain substances. For example, possession of heroin is a 1st-degree felony punishable by 30 years in prison and a fine of up to $10,000. On the other hand, Schedule V substances may result in a misdemeanor depending on the amount in possession.

How Constructive Possession Works

In standard drug cases, law enforcement will obtain the illicit substance and determine whether the individual ingested it by taking blood tests. Charges are not issued unless there is concrete proof that the individual had an illegal substance on them at the time of the arrest.

Constructive possession charges, on the other hand, do not require physical evidence. Instead, law enforcement and the prosecution only need proof that the individual had knowledge or control over the source/substance.

To better understand the concept, here’s an example: You have the keys to your car, and the title is in your name. You have constructive possession of the vehicle even when you aren’t driving it because you control the access and operation of the car. That said, if you had an illegal substance in the trunk of the car, you could be charged with constructive possession.

Defense Against Constructive Possession

These cases are hard to prove because the prosecution needs evidence of two things: knowledge and control. If there is insufficient evidence that the individual knew about the drug or had control over it, there isn’t a case.

For a person to have knowledge of a substance in these cases, they need to know it exists, where to get it and how it’s distributed. So, if drug users know where their dealer lives and who supplies the dealer, they could be charged. However, if you live in an area known for drug deals but have no information about who is involved, you are not guilty of constructive possession.

The other part of the equation is control. To have control of a banned substance, a person needs to have executive power over the distribution and/or creation of that substance. For example, the person who makes meth and divides it up among the dealers is ultimately in control.

Keep in mind: proximity to drugs alone is not constructive possession. If you are at someone’s house and the host has drugs in the basement, but you have no idea they are there, you are not connected to the case. The only way you would potentially be charged with constructive possession is if you knew about the drugs and/or facilitated the use and sale.

What To Do If You Are Accused of Constructive Possession

If you are accused of constructive possession, speak to a lawyer immediately. Drug charges are very serious and can disqualify you from employment opportunities, college scholarships, and other privileges. You shouldn’t have to give up your freedom because of a drug charge.

At The Hoffman Firm, we believe that no case is too big or small. We have over two decades of experience and a successful track record. Our firm is prepared to investigate the details of your case and build a strategy that protects your rights, freedoms, and future in court.

Contact The Hoffman Firm today! Se habla español.