synthetic weed in florida

Possession of Synthetic Drugs / K2 / Spice

Possession of Synthetic Drugs / K2 / Spice

Buying, selling or smoking synthetic marijuana is NO LONGER LEGAL . Possession of synthetic drugs, including K2, spice, or other synthetic drugs is classified as a First Degree Misdemeanor in Florida if under 3 grams. Also, under the Florida Criminal Punishment Code Possession of synthetic drugs is classified as a Level 3 severity ranking which will get you 16 points on a score sheet as a primary offense.


Florida Statute § 893.03(1)(c) largely expanded the list of banned substances classified as Schedule I Drugs under the Florida Comprehensive Abuse Prevention and Control Act.

HB 1175 added 91 new substances to Schedule I drugs such as synthetic cannabinoids and synthetic stimulants like Methyltryptamine, Ethcathinone and Benzylpiperazine. The 91 new substances were the legislatures effort to regulate drugs which, because of their molecular makeup, could easily be altered into new chemical compounds.

Many of the synthetic drugs included under Florida Statute § 893.03(1)(c) are commonly referred to as synthetic marijuana, K2, spice, bath salts and potpourri.

What Penalties Am I Facing?

Under Florida Statute § 893.03(1)(c), if you are convicted of possession of less than 3 grams of synthetic marijuana or K2 you could be sentenced to:

  • A maximum penalty of up to one (1) year in prison;
  • A maximum penalty of up to one (1) year supervised probation/community control; or
  • A maximum penalty of up to a $1,000 fine
  • 2 Year Driver’s License suspension (if adjudicated guilty)
  • Substance Abuse Evaluation/Treatment/Screening (during probation)

If you are convicted of possession of more than 3 grams of synthetic marijuana or K2 you will be facing a Third Degree Felony and could be sentenced to:

  • A maximum penalty of up to five (5) years in prison;
  • A maximum penalty of up to five (5) years supervised probation/community control; or
  • A maximum penalty of up to a $5,000 fine
  • 2 Year Driver’s License suspension (if adjudicated guilty)
  • Substance Abuse Evaluation/Treatment/Screening (during probation)
  • The possible forfeiture of any vehicle and/or property used in the commission of a felony (See Forfeiture Page).

In addition to the penalties above, anyone who, after either a plea or trial, is adjudicated guilty of a possession of a narcotic charge like K2 or spice possession, must be sentenced to a two (2) year mandatory driver’s license suspension. Many attorneys are unaware of Florida Statute 322.055 which mandates the drivers license suspension (meaning that even if the judge thought you were a nice guy/girl, the judge would have no discretion in not suspending your license even if he/she wanted to).

If we are able to get your charges dropped (Motions to Dismiss or Suppress), you successfully participate in the Pre-Trial Intervention program, have us negotiate a plea deal for you which would “withhold adjudication, or if you hire us to challenge your charges in a criminal trial and we win, your license will not be suspended. So it’s important you hire The Modarres Law Firm to help you navigate through the complicated maze that is the criminal justice system to get you the best outcome possible!

Actual Possession vs. Constructive Possession:

In Florida, unless law enforcement finds the xanax or illegal narcotic ON you (“actual possession”), the prosecutors have to proceed on a theory of “constructive possession.” It is important to note that in Florida, there is an important distinction between ownership of the illegal substance and possession of it. See Scruggs v. State, 785 So.2d 605, 607 (Fla. 4 th DCA 2001). Cases of constructive possession are infinitely more difficult for prosecutors to prove. Here’s why:

Actual possession” means that the K2 or spice, or illegal narcotics were actually found in your pockets, your hands, or wallet, etc). If you borrow a pair of jeans from your friend and they just so happen to have some K2 or spice in the pockets that you’re unaware of, guess what, you’re getting charged with a Third Degree Felony facing up to 5 years in prison.

The other type of possession is “constructive possession.” Constructive possession means that the drugs were not actually found in your hands or pockets, but in an area where the person had knowledge of the drugs and had the ability to access and exercise “dominion and control” over the drugs.

In constructive possession cases, prosecutors have to prove that you had “dominion and control” over the K2 or spice or illegal narcotics, knowledge of its presence, the ability to maintain control over it, and knowledge of its illicit nature. So plainly put, you had control of the area where the drugs were found, you knew the drugs were there, you had the ability to grab the drugs, and you knew the drugs were illegal. Proving just one of these elements is not enough, the prosecutors have to prove each element of constructive possession. In the case of exclusive possession by the accused, these elements may be inferred, otherwise it must be proven by the State by affirmative evidence. Brown v. State, 428 So.2d 250 (Fla. 1983); Arant v. State, 256 So.2d 515, 516 (Fla. 1 st DCA 1972).

Constructive possession becomes a real problem for prosecutors when you run into issues where they don’t have a whole lot of evidence against you. For example, what if the State pulls you over in a car that didn’t belong to you, find some drugs in an envelope or box tucked away in a hidden place in the car, and that box or envelope just so happened to have your fingerprint on it. Slam dunk case for the prosecution right? Wrong. In Arant v. State, the defendant was charged with possession of marijuana. A search was conducted of a female companion’s home and police recovered a single fingerprint of defendant on a potato chip can, which contained a marijuana plant. The State also proved that the defendant frequently visited the home. The Court ruled, “[t]he fingerprint proves quite conclusively that appellant touched the can. It tells us nothing about when…. Obviously the trier of fact thought it probable that the print was made after the plant’s presence in the can was manifest. But guilt cannot rest on mere probabilities. It is no less probable that the print was made before the plant was put in the can or perhaps while it contained a seed not yet visible. The State’s hypothesis that the print proves possession, even if we held it consistent with guilt, is no less consistent with innocence….” Arant v. State, 256 So.2d 515 (Fla. 1 st DCA 1972); accord Tanksley v. State, 332 So.2d 76 (Fla. 2d DCA 1976).

Double Jeopardy Issues:

Everyone has usually heard of “Double Jeopardy” at some point. Well, Florida courts have found that you can’t be tried and convicted twice for the same crime, and you can’t receive multiple punishments for the same crime. Gibbs v. State, 698 So.2d 1206 (Fla. 1997). The Florida Supreme Court has also found that you can’t be convicted of both trafficking cocaine AND possession of the SAME cocaine. Gibbs v. State, 698 So.2d 1206 (Fla.1997); Trice v. State, 755 So.2d 808 (Fla. 3d DCA 2000).

Possible Defenses to Possession

4th Amendment Illegal Search and Seizure: The Modarres Law Firm will work closely with you to gather all essential facts in order to develop the best possible defense and secure the most favorable outcome in your case. Every case is different. That is why it is important to hire a law firm with experience, and with attorneys who are accessible to you instead of speaking to legal secretaries and paralegals. We’ll sit down with you and look at all the facts and circumstances surrounding your arrest including the reason for the stop (illegal tints is a law enforcement all-time favorite for traffic stops), any searches that were conducted or other actions of law enforcement to determine whether or not the investigation was conducted lawfully. If the police don’t follow the law, the Constitution demands that any evidence recovered against you illegally (“fruit of the poisonous tree”) can’t be used against you in any subsequent case. The Modarres Law Firm will make sure the police and prosecutors play by the rules!

The Modarres Law Firm is experienced in examining lawful stops, and making innovative and creative arguments within the confines of the law and case precedent to get criminal charges dismissed before the case reaches a trial phase. After careful examination, if the initial stop or subsequent search in your case appears to be suspect, The Modarres Law Firm will file a motion to suppress the evidence, or in some circumstances a motion to dismiss. These motions could be critical. Winning a Motion to Suppress under Florida’s Exclusionary Rule, or winning a Motion to Dismiss will result in preventing the prosecutors from moving forward with the case and being forced to enter a “Nolle Prosequi”, or the case being dismissed by the Judge. The Modarres Law Firm is an experienced Orlando criminal defense law firm that is experienced in both writing and arguing successful pre-trial motions.

Prove It!: The Modarres Law Firm will closely scrutinize the details of your case to reveal a lack of evidence or any other weaknesses in the case and bringing them to the attention of the prosecutors and judge. Once the prosecutors understand that they have a weak case in terms of being able to prove both knowledge and control of the illegal substance.

As you can imagine, there is a whole host of other defenses that could be raised such as identity. The State’s reliance on a single latent print as the entirety of its evidence presented to prove identity is insufficient without evidence that the fingerprint could have been made only at the time the crime was committed. Jaramillo v. State, 417 So.2d 257 (Fla. 1982); Williams v. State, 308 So.2d 595 (Fla. 1 st DCA 1975).

Whether or not the drugs were actually illegal (was it only “field tested” or sent to FDLE for additional testing to determine that it was in fact illegal drugs) could also play a significant part in your defense. Obviously if the drugs are not actually illegal narcotics, we may have the charges dropped against you entirely. Call us to talk about your case and let us determine any possible defenses you may have.

If No Defenses or Motions Are Available, There Is Still Hope:

The Modarres Law Firm, we will always try to aggressively defend against your case and fight for you as opposed to simply “pleading your case out” to unfavorable conditions. However, we also understand that in some cases, the most favorable outcome of your case may involve negotiation as opposed to raising defenses or challenging the sufficiency of evidence. In rare instances, after we’ve done all we can to investigate, discovery, and reviewing your case, we’ll negotiate with prosecutors to structure a favorable plea offer for you that will mitigate or lessen the sentence you face.

If you do not wish to exercise your constitutional right to a jury trial, we can seek the following possible outcomes for you:

  1. Drug Court:This program is a court-supervised treatment court for defendants who are not charged with a violent crime. Drug Court operates in conjunction with community substance abuse rehab centers, Judges, the Sheriff’s Office, the Office of the State Attorney, the Office of the Public Defender and local law enforcement agencies. A defendant typically will be entered into the Drug Court program through PTI or a condition of probation (discussed in the following paragraph) and will be eligible to have the charges dismissed upon successful completion and graduation from the program. After successful completion, all charged will be dismissed by the Judge (withhold of adjudication if entered as condition of probation). Whether the program is entered into through PTI, or as a condition of probation, you will be able to avoid a possible felony conviction on your record.
  2. Pre-Trial Intervention(PTI): PTI is similar to Pre-trial Diversion except it is a program run by the Judge as opposed to the State Attorney’s office. After successful completion, the judge will dismiss all charges (as opposed to pre-trial diversion or drug court, where the State Attorney “nolle prosses” / drops the charges).
  3. Withhold of Adjudication: Meaning that you will not be “adjudicated guilty” of the crime that you are charged with and it will not have an adverse impact on future job or school applications.

Possession cases, like most criminal cases, can be very fact-intensive and complicated. Even a slight variation of the facts could affect a number of nuances which could have a significant impact on the penalties you face. The Modarres Law Firm is experienced in defending against possession cases and will be by your side, fighting for you every step of the way. Call us at (407) 408-0494 and you will be connected directly to an experienced attorney, not a paralegal or secretary.

Copyright © 2013 The Modarres Law Firm – Orlando Florida Defense Lawyers – Central Florida Criminal Defense Attorneys – All rights reserved. Orlando Criminal Lawyer Disclaimer: The civil rights, criminal, criminal defense or other legal defense information presented at this site should not be considered formal legal advice nor the formation of a lawyer or attorney client relationship. Our criminal defense law firm serves the following communities, among others: Orlando, Pine Hills, Apopka, East Orlando, West Orlando, Conway, Bay Hill, Doctor Phillips, Belle Isle, Pine Castle, Oviedo, Ocoee, Winter Park, Winter Springs, Maitland, Eatonville, Winter Garden, Southeast Orlando, Southwest Orlando, Casselberry, Altamonte Springs, Maitland, Apopka, Sanford, Seminole County, Orange County, Heathrow, Lake Mary, Longwood, Midway, UCF, University Park, Thornton Park, Baldwin Park, Colonial Drive, Orange Avenue, Robinson Street, S Orange Avenue, Downtown Orlando, Alafaya Trail, University Blvd, Curry Ford, Lake Underhill, Goldenrod Road, Dean Road, Chickasaw Trail, Pershing, Semoran Blvd, Lake Margaret, Conway.

The Modarres Law Firm is a Maryland Civil Rights Law Firm Representing Victims of Police Excessive Force, and Brutality. We also represent clients in Maryland in cases involving DUI, Criminal Defense, Car Accidents, Traffic Tickets, MVA Hearings, Divorce, Custody, and Slip and Fall Cases. ]]>