What is the Law Regarding Trafficking in Cocaine in Florida?

James Reese Mitchell

Written by

Criminal Defense Attorney

Posted June 05, 2009

Cocaine is a controlled substance.

Certain drugs and chemical substances are by law known as "controlled substances." Florida Statute section 893.03 defines the "controlled substances." Cocaine is a schedule II controlled substance. A Schedule II substance means that the substance has some accepted but severely restricted medical use, that there is a high potential for abuse of the substance and that, and abuse may lead to severe psychological or physical dependence.

What is trafficking in cocaine?

Historically, trafficking means to carry on traffic, trade, or commercial dealing. As in a person who deals in a commodity or service. It implies a buyer and a seller who exchange a commodity for money. However, because it is so difficult to catch drug dealers in the act of the actual exchange the legal definition of trafficking is much broader. It does NOT require a buyer, a seller, or an exchange of goods for money. A person may commit the crime of trafficking in cocaine by selling a quantity cocaine, or purchasing a quantity of cocaine, or manufacturing a quantity of cocaine, or delivering a quantity of cocaine, or bringing a quantity of cocaine into Florida, or by possessing a quantity of cocaine. The most frequently way this crime is charged is by alleging possession of a quantity of cocaine without any evidence of a buyer or seller or an exchange for money.

What are the elements of the crime?

To prove the crime of Trafficking in Cocaine, the State must prove the following four elements beyond a reasonable doubt: 1) The defendant knowingly sold, purchased, manufactured, delivered, brought into Florida, or possessed a certain substance; 2) The substance was cocaine or a mixture containing cocaine; 3) The quantity of the substance involved was 28 grams or more; and 4) The defendant knew that the substance was cocaine or a mixture containing cocaine. It is NOT a defense to the crime that the defendant intended to traffic in heroin but actually trafficked in cocaine.

How does the purity of the mixture affect the crime?

Any mixture that contains cocaine makes the entire mixture a controlled substance. The amount or weight of the mixture determines the minimum mandatory sentence. When determining the amount or weight, the courts do not consider the percentage of cocaine in the mixture. They simply weigh the entire mixture and consider all of it as an illegal compound. So hypothetically, if a kilogram of cocaine has been "cut" with something else and the mixture is 30% cocaine and 70% filler, the courts still consider that a kilogram of cocaine, even though most of it is not cocaine! Let's say someone was in possession of 30 grams of a mixture that contains cocaine and that it is 10% pure and 90% filler. That would mean that they had possession of 3 grams of cocaine and 27 grams of filler. 3 grams of cocaine is not trafficking merely a lesser crime of possession of cocaine. But in the eyes of the law the defendant was actually in possession of 30 grams of cocaine and is guilty of trafficking.

Sell, purchase, manufacture, deliver, and bring into Florida defined.

The meaning of the words sell, purchase, manufacture, deliver, and bring into Florida mean exactly what you think they mean. "Sell" means to transfer or deliver something to another person in exchange for money or something of value or a promise of money or something of value. "Manufacture" means the production, preparation, packaging, labeling or relabeling, propagation, compounding, cultivating, growing, conversion or processing of a controlled substance, either directly or indirectly. Manufacturing can be by extraction from substances of natural origin, or independently by means of chemical synthesis. It can also be by a combination of extraction and chemical synthesis. "Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. "Bring into Florida" means to take something across the state border into the state.

What is actual possession?

To "possess" means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. Possession may be actual or constructive. Actual possession means: the controlled substance is in the hand of or on the person, or the controlled substance is in a container in the hand of or on the person, or the controlled substance is so close as to be within ready reach and is under the control of the person.

What is the mere proximity defense?

Mere proximity to a controlled substance is not sufficient to establish control over that controlled substance when it is not in a place over which the person has control. For example, assume that the police found cocaine in or on a coffee table in the living room of a house occupied by 2 or more persons. Assume the defendant and his roommate are arrested in the living room AND NO ONE CONFESSED to the crime. Then each roommate would have the defense of mere proximity. Because, they were arrested in the living room which is a common room open to all residents of the house and any one of them could have left it there.

What is constructive possession?

Constructive possession means the controlled substance is in a place over which the defendant has control, or in which the defendant has concealed it. In order to establish constructive possession of a controlled substance in a place over which the defendant does not have control, the State must prove the defendant's 1) control over the controlled substance and 2) knowledge that the controlled substance was within the defendant's presence. If a person has exclusive possession of a controlled substance, knowledge of its presence may be inferred or assumed. If a person does NOT have exclusive possession of a controlled substance, knowledge of its presence may not be inferred or assumed.

What is the lack of knowledge of the illicit nature defense?

Knowledge of the illicit nature of the controlled substance is NOT an element of the offense but, lack of knowledge of the illicit nature of a controlled substance is an affirmative defense. Knowledge of the illicit nature of the substance means that the defendant knew the substance was cocaine and illegal. If the jury makes a finding that the defendant was in actual or constructive possession of the controlled substance, there is a rebuttable presumption that the defendant was aware of the illicit nature of the controlled substance. The presumption can be rebutted if the defendant puts on a defense to explain how and where he or she innocently came to be in possession of the container and didn't know that it actually contained cocaine. For example, the defendant may have borrowed a container of baby powder (that unknown to the defendant actually contained cocaine) The defendant could call witnesses who were present when he or she borrowed the baby powder.

What are the manditory minimum sentences?

28 grams or more but less than 200 grams = 3 years and a fine of $50,000; 200 grams or more but less than 400 grams = 7 years and a fine of $100,000; 400 grams tor more but less than 150 kilograms = 15 years and a fine of $250,000; 150 kilograms or more = life.

What are the lesser included offenses?

Assuming trafficking by possession in a quantity over 400 grams is charged (15 year manditory minimum). A jury could find that the state did not prove the quantity charged and convict on trafficking in the 200 to 400 range (7 year manditory minimum); or trafficking in the 28 to 200 range (3 year manditory minimum); or if they find less than 28 grams, they could convict on possession of cocaine (no manditory minimum). A jury could also find attempt at each of these levels.

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