Florida law is quite strict when it comes to the possession of fentanyl, making a good defense to those charges critical to avoiding a felony conviction and the loss of rights that come with a conviction.
Under Florida statute, Trafficking in Fentanyl is the act of knowingly possessing, selling, purchasing, manufacturing, delivering, or transporting 4 grams or more of fentanyl or any derivative compound. If caught with less than four grams of fentanyl, the charge of possession of fentanyl, which is a third-degree felony, is the usual result. If convicted of this, three tiers of mandatory minimum punishments await a defendant at sentencing.
- Four grams of fentanyl but less than 14 grams – a minimum of 3 years to a maximum of 30 years in prison and a $500,000 fine.
- Fourteen grams up to 28 grams of fentanyl – a minimum of 15 years in prison through a maximum of 30 years in prison and a $100,000 fine.
- Twenty-eight or more grams of fentanyl – a minimum of 25 years and a maximum of 35 years in prison and a fine of $500,000.
Trafficking in fentanyl is a Level 8 or Level 9 offense, and it has other punishments outside of fines and prison time. One convicted of trafficking in fentanyl will also endure a six-month suspension of their drivers license upon release, and a conviction also allows for an emergency suspension of any professional license issued by the State of Florida authorizing a profession or trade.
Defense attorneys use several typical strategies when defending against a charge of possession of fentanyl and trafficking in fentanyl.
- Tainted or planted evidence by law enforcement
- If part of a group, arguing that the fentanyl found at the scene did not belong to you
- Law enforcement failed to have probable cause, making the search and seizure of the fentanyl “fruit of a poisonous tree” and unavailable to introduce into evidence against you at trial
- If found on your property, arguing that the fentanyl found by law enforcement was not yours
- Law enforcement has mistaken you for the actual owner and prosecuting the wrong person
Another often-raised defense is that of entrapment. Per Florida law, entrapment is an undercover law enforcement officer or confidential informant commit inducing a person to commit a criminal offense that the person would have been otherwise unlikely to commit. If proven, the affirmative defense of entrapment allows the court to dismiss the fentanyl charges against you.
The defense of a lack of evidence is also frequently employed against fentanyl charges. To gain a conviction, the prosecution must prove either actual possession or constructive possession. Actual possession of fentanyl is achieved when the substance is found on your person, usually in clothing.
Alternatively, constructive possession is proven when prosecutors show that the defendant possessed the fentanyl in a place where several people had access. Constructive possession has three prongs:
- The defendant has knowledge of the presence of fentanyl,
- the defendant knows the substance is fentanyl, and
- the defendant had dominion or control over the fentanyl.
If facing a charge of possession of fentanyl or trafficking of fentanyl, contact Brunvand Wise P.A. today.