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West Palm Beach Criminal Lawyer / Blog / Drug Crimes / Actual vs Constructive Possession In Florida Drug Cases

Actual vs Constructive Possession In Florida Drug Cases


Possession of drugs is a fairly straightforward crime in most respects; one might figure that either a person possessed drugs, or they did not. In reality, the law allows for more variation and nuance in the definition of “possession.” One of the most common issues in this respect is the concept of actual versus constructive possession of illegal substances. Too often, it comes as a nasty shock to a person that they can be charged with possessing something when they did not have it on their person, but the law in Florida allows this.

Physical vs Moral Possession

Both federal law and Florida state law place controlled substances into ‘schedules,’ with Schedule I drugs having the most potential for abuse. Possession of any controlled substance without a prescription, with rare exceptions, is against the law, and will usually be charged as a felony (with the exception of instances of cannabis possession under 20 grams, which is usually charged as a misdemeanor).

Actual possession of a controlled substance is a crime proven exactly the way one might think: if a person is found to have the substance physically on their person anywhere – in their pocket, in their shoe, or somewhere else – they can be charged with the offense and usually found guilty. The concept of constructive possession, however, can be more complex and may give rise to potential angles for a defendant to attack in defending themselves.

Three Criteria Required

Florida case law requires three things to be proven in order for a state’s attorney to establish constructive possession of drugs. The first is exercising “dominion and control” over the drugs; the second is knowing of the drugs’ presence; and the third is being aware of the drugs’ “illicit” nature. One of the most common examples of constructive possession is if drugs are found in a person’s vehicle – particularly if no one else had permission to drive the vehicle, it is generally easy to establish the first two criteria, and the third can be proven via testimony or other means.

It is important to keep in mind that case law explicitly says mere proximity to drugs is not enough. Even if someone is arrested “one foot from a matchbook containing 19 packets of heroin,” it is not sufficient to establish possession or intent to commit any crime. Too often, defendants who do not know better may be convinced to plead guilty or no contest simply because they wound up ‘near’ drugs; in reality, more is required to legally establish culpability.

Contact A West Palm Beach Drug Possession Attorney

If you have been charged with drug possession, but the substance was not found on your person, it is likely that constructive possession will be a part of the state’s case against you. A West Palm Beach drug crimes attorney from Perlet & Shiner, P.A. can help protect your rights as you navigate the legal process. Contact our office today at (561) 721-0552 to speak to an attorney.



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