Drug Charges in Florida: What is Constructive Possession?

Florida has some of the toughest drug laws in the entire country. If you are arrested for drug possession in our state, you could be looking at serious criminal penalties—potentially including a lengthy prison sentence. 

Did you know that you can be charged with and convicted of drug possession even if a controlled substance is never actually discovered in your hands or on your person? 

It is called “constructive possession”—and it occurs when someone maintains control over a banned substance without having it within their physical grasp. 

Here, our Tampa drug crimes defense lawyer provides an overview of constructive possession in Florida. 

Constructive Possession: Explained

For the purposes of state and federal drug laws, you can possess something without having it in your hands or in your pockets. Indeed, constructive possession is essentially non-physical possession. If convicted on a constructive possession charge, a defendant will face the same harsh criminal penalties as if they had actual possession. 

That being said, you can defend yourself against unfair or unsupported constructive possession charges. For a number of different reasons, proving constructive possession can be challenging. Florida prosecutors must prove the following two key elements in these types of cases: 

  • Knowledge: To have constructive possession of a drug, you must have had knowledge of its presence. Indeed, lack of knowledge is a viable defense to constructive possession. It is the prosecution’s duty to prove, beyond a reasonable doubt, that the defendant actually knew about the drugs in question. 
  • Control: Additionally, prosecutors must also prove that the defendant had control of the banned substance. If you lacked the ability to control the drugs, then you are not in constructive possession of those drugs. 

It is important to understand what constructive possession is and what it is not. To be clear, proximity is not sufficient to establish constructive possession in the state of Florida. 

As an example, in 2011, a Florida appeals court dismissed constructive possession charges that were based solely on proximity. In Johnson Session v. State, Florida prosecutors filed possession charges against a defendant who was in the same vehicle as illegal drugs. 

However, the appeals court noted that two people were actually in that vehicle and neither of them owned the car.  Neither defendant made a statement indicating that they owned the drugs and there was no DNA evidence found the substances. The appeals court was very clear: the presence of the illegal drugs in close proximity to the defendant was not, by itself, enough to prove that this person was in possession. 

Contact Our Tampa, FL Criminal Defense Attorneys Today

At Hanlon Law, our Florida drug crimes defense lawyers have the skills, experience, and tenacity to handle complex cases, including constructive possession charges. If you or your loved one was arrested and charged with constructive drug possession, we are here to help. For a confidential initial consultation, please contact us today at 507-625-5000. From our office in Tampa, we serve clients throughout the region, including in Pinellas County, Pasco County, and Hillsborough County.