Possession of a Controlled Substance in Florida

Every state regulates the possession of controlled dangerous substances (CDS), though each differs how it defines CDS and the penalties for their possession. Florida classifies not only well-known drugs like marijuana, heroin and cocaine as controlled substances, but also the compounds used to manufacture them.

Certain drugs, like codeine, may be legally possessed with a valid prescription.

How Florida Classifies CDS

Florida divides its CDS into five “schedules,” according to their likelihood for abuse.

• Schedule I drugs (such as heroine) are those that have a high potential for abuse and have no accepted medical use.
• Schedule II drugs (such as opium and morphine) have a high potential for abuse, have an accepted medical use with severe restrictions, and their abuse has the potential for severe psychic and physical dependence.
• Schedule III drugs (such as anabolic steroids) have a potential for abuse less than Schedule I or II drugs, have an accepted medical use, and their abuse may lead to low or moderate physical dependence and high psychological dependence.
• Schedule IV drugs (such as diazepam) have a lower potential for abuse than Schedule III drugs, have an acceptable medical use, and their abuse may lead to limited psychological and physical dependence in relation to Schedule III drugs.
• Schedule V drugs have the lowest potential for abuse relative to Schedule IV CDS, have a currently accepted medical use, and have a limited risk of physical or psychological dependence relative to Schedule IV CDS. Schedule V drugs include medicines that contain very small amounts of specified narcotic drugs.

(Florida Statute Section 893.03.)

This article concerns the possession of CDS for personal use only. Separate punishments apply to the sale of CDS. For information about sale of CDS, see Sale of a Controlled Substance in Florida.

Penalties for the Possession of CDS

The possession of CDS is punished as either a felony or misdemeanor, depending on the type and amount of the substance involved. The penalty is the same regardless of whether the possession was actual or constructive. Misdemeanor crimes are less serious than felonies and receive a shorter incarceration period and smaller fines.

To understand what charges you might face, you should review the Schedules to see which drug fits into each category.

Actual or Constructive Possession

Florida does not consider ownership with regard to possession crimes. This means that even if the CDS does not belong to you, you are criminally liable for either the actual, or constructive possession of the substance.

Actual possession. Actual possession of CDS occurs when the substance is in the defendant’s physical custody (such as in a jacket pocket.)

Constructive possession. Constructive possession does not require actual physical contact with the CDS, but that the defendant has knowledge of its whereabouts and the ability to physically control the CDS (such as in a glove compartment box.)

Felony Possession of CDS

Florida divides felonies into three degrees. Felony possession is either a felony of the first or third degree. Felony possession of the first degree is the most serious and receives the harshest penalties.

Felony possession of the first degree

The actual or construction possession, in excess of 10 grams, of Schedule I CDS other than the following substances is a felony of the first degree, punishable by a period of incarceration of up to 30 years, a fine of $10,000, or both:

• hallucinogens
• 1,4-Butanediol
• gamma-butyrolactone (GBL)
• gamma-hydroxybutyric acid (GHB)
• methaqualone, and
• mecloqualone.

Felony possession of the third degree

The actual or constructive possession of any CDS, other than those discussed elsewhere in this article, is a felony of the third degree, punishable by a period of incarceration of up to five years, a fine of $5,000, or both. This does not apply to substances obtained by a valid prescription.

Misdemeanor Possession of the First Degree

The possession of the following CDS is a misdemeanor of the first degree and is punishable by up to one year in jail, a fine of up to $1,000, or both:

• up to 20 grams of marijuana
• up to three grams of 2-[(1R,3S)-3-hydroxycyclohexyl]-5-(2-methyloctan-2-yl)phenol
• up to three grams of (6aR,10aR)-9-(hydroxymethyl)-6,6-dimethyl-3-(2-methyloctan-2-yl)-6a,7,10,10a-tetrahydrobenzo
• up to three grams of [c]chromen-1-ol
• up to three grams of 48. 1-Pentyl-3-(1-naphthoyl)indole, or
• up to three grams of 49. 1-Butyl-3-(1-naphthoyl)indole.

(Florida Criminal Code Section 893.13, 775.082, and 775.083.)

For more on marijuana possession, see Possession of Marijuana in Florida.

Habitual Offenders

Like most states, Florida punishes defendants with multiple convictions more harshly.

Habitual felony offenders

A defendant with two or more prior felony convictions in Florida, or under any other law in the United States, faces an increased penalty for subsequent convictions.

• A conviction for a felony of the first-degree may be sentenced to a period of incarceration of up to life.
• A conviction of a felony of a third degree may be sentenced to a period of incarceration of up to ten years.

You should review the statute to determine whether your past convictions could result in an enhanced penalty.

(Florida Criminal Code Section 775.084.)

Habitual misdemeanor offenders

A defendant with four of more prior misdemeanor convictions may be penalized in one of the following manners at the court’s discretion:

• a period of six months to one year of incarceration
• enrollment in a residential treatment program, or
• home detention for a period of six months to 364 days.

(Florida Criminal Code Section 775.0837.)

Talk To An Attorney

In Florida, you can be convicted of CDS possession even if the substance involved did not belong to you. To understand the crime you have been charged with, any possible defenses, your options, and the possible outcome of your case you should speak to an attorney who is experienced in CDS defense.