What Possession Means in Florida
Possession of a controlled substance under section 893.13(6)(a) is usually a third-degree felony, though possession of twenty grams or less of cannabis is typically a misdemeanor. The word possession trips people up, because it does not mean ownership and it does not have to be exclusive to one person. What it means is knowing control over the substance, and the way the State tries to prove that control is where most possession cases turn.
| Actual possession | Constructive possession | |
|---|---|---|
| What it is | The substance is on you | The substance is somewhere you could control |
| What the State must show | Direct physical control | Knowledge of its presence and the ability to control it |
| Where the defense pushes | Whether it was truly on your person | Whether the State has independent proof tying it to you |
Constructive Possession and the Shared-Space Problem
Constructive possession is the harder case for the State, and it comes up constantly: drugs found in a car with more than one person, or in a home with several residents, or in a bag that several people could reach. Florida law requires the State to prove that you knew the drugs were present and had the ability to control them. And when the place is occupied by more than one person, your knowledge and control cannot be inferred from your mere presence. The State needs independent proof, an admission, an incriminating circumstance, or contraband in plain view in a shared area, and mere proximity to the drugs is not enough. See Cordero v. State, 589 So. 2d 407 (Fla. 1st DCA 1991). A great many possession cases end on a sworn motion to dismiss built on exactly this gap.
The Knowledge Rule Unique to Florida
Florida handles the knowledge question in a way that surprises even people who have been through the system elsewhere. The State must prove you knew the substance was present, that part remains an element. But the State does not have to prove you knew the substance was illegal. Instead, lack of knowledge of the illicit nature of the substance is an affirmative defense that you raise, under section 893.101, which the Florida Supreme Court upheld in State v. Adkins, 96 So. 3d 412 (Fla. 2012). The catch is that once you raise it, the jury is allowed to presume you knew from the fact of possession, so the defense has to be grounded in real facts, the borrowed jacket with a stranger’s pills in the pocket, the package handed off without its contents known. Used well, it is a genuine path to acquittal in the right case.
The Search Almost Always Comes First
Before the case ever reaches the question of whose drugs they were, there is usually a more basic one: did the police get them lawfully. A possession charge built on an unlawful stop, an overbroad search, or a defective warrant can collapse when the drugs are suppressed, and in a possession case the drugs often are the case. That is why the first hard look is almost always at the Fourth Amendment, which I cover on the search and seizure page.
The Prescription Exception
Possession of many controlled substances is lawful when the substance was obtained through a valid prescription. A prescription is a complete defense to a possession charge for the medication it covers, and proving it up is often a matter of records rather than trial. There is more on this, and on how prescription cases can tip into trafficking by weight, on the prescription drugs page.
Penalties, and the Paths Out
A felony possession conviction carries prison exposure, a six-month driver’s license suspension under section 322.055, and the collateral weight of a drug record. But conviction is not the only ending. The right case resolves through a motion to suppress, a motion to dismiss on constructive possession, the section 893.101 defense, or a diversion path like drug court that can close the matter without a conviction at all, which I cover on the defenses and diversion page.
Related: Drug crimes overview, Challenging the drug evidence, Prescription drugs, and Challenging a search or stop.
I started out as an Assistant Public Defender in Florida’s Thirteenth Judicial Circuit, in Tampa, and I am one of six ACS-CHAL Forensic Lawyer-Scientists in the state. A drug case is rarely as simple as the arrest report makes it sound, and the gaps are where the defense lives. Learn more about my background.
Common Questions
Is drug possession a felony in Florida?
Usually, yes. Possession of most controlled substances under section 893.13(6)(a) is a third-degree felony, although possession of twenty grams or less of cannabis is typically a misdemeanor. The substance and the amount drive the charge.
The drugs were not mine. Can I still be convicted?
Only if the State can prove constructive possession, which is often where these cases fall apart. When drugs are found in a shared car or home, your knowledge and control cannot be inferred from your mere presence. The State needs independent proof, and mere proximity is not enough, which is the basis for many motions to dismiss.
Does the State have to prove I knew the substance was illegal?
No, and this surprises people. Under section 893.101, the State must prove you knew the substance was present, but not that you knew it was illegal. Lack of knowledge of the illicit nature is an affirmative defense you raise, upheld in State v. Adkins, though once raised the jury may presume knowledge from the fact of possession.
What is a motion to dismiss in a possession case?
It is a sworn motion that takes the facts as the State alleges them and argues that, even so, they do not establish the crime. In a constructive-possession case in a shared space with no admission and nothing in plain view, that motion can end the case before trial.
Is a valid prescription a defense?
Yes. Possession is lawful when the controlled substance was obtained through a valid prescription, and a prescription is a complete defense to a possession charge for the medication it covers. Proving it is often a matter of records.
Will a possession conviction suspend my license?
For offenses on or after October 1, 2019, a drug conviction generally brings a six-month driver's license suspension under section 322.055, with a possible business-purposes-only exception. Avoiding a conviction through a dismissal, a withhold, or diversion avoids the suspension.
This page is general information about Florida law, not legal advice, and it does not create an attorney-client relationship. The charge and the defenses turn on the substance, the amount, and the facts, and the law can change, so confirm how it applies with counsel. Every case is different, and past results do not guarantee a similar outcome.
