What Is Considered As Drug Paraphernalia In Florida?
“All equipment, products and materials of any kind which are used, intended for use, or designed for use in planning, propagate, cultivate, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing and sealing, transporting, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance.” You can understand from that definition that anything potentially can be paraphernalia. If you have sandwich baggies, they are just regular sandwich baggies; you put the sandwich in them, no problem. If they have two marijuana seeds in there, you can be charged with paraphernalia because you are holding and containing a controlled substance.
If you have the pipe that you like to smoke, the pipe tobacco and someone takes it and puts crack in it, lights it up, it loses its non-criminal characteristic and it is now drug paraphernalia that could be taken. I have seen blenders and bowls and all of that stuff, these household items become drug paraphernalia when they are mixing the various concoctions dealing with the class and whatnot. So anything can lose its non-criminal characteristic and become a criminal paraphernalia if it falls within any of those very broad categories. Penalty wise, paraphernalia is usually a first degree misdemeanor punishable up to a year in a county jail and a $1,000 fine. There is a section in the statute that says that any paraphernalia that is made or reasonably should have been known that would have been used to transport cannabis is a third degree felony, only that type of paraphernalia has a much more severe penalty.
How is Drug Trafficking Defined In Florida?
A trafficking in Florida is based upon the amount of the drug involved. If you have twenty-five pounds of marijuana, you do no longer possess it with intent to distribute or selling it or distributing it, you are trafficking marijuana. That is important because it raises the stakes and the penalties at that point become mandatory minimum penalties. Regardless of criminal history you have or lack thereof, you will be facing three years mandatory prison time. Same holds true for 28 grams of cocaine, and there are minimum levels of Oxycodone and Hydrocodone. Those two are different, but it is not very much; Hydrocodone is 7 grams and Oxycodone is 14 grams, it does not take very much to get there by the way.
When you are dealing with the substance, for trafficking purpose in Florida, the weight is determined by the total amount of the substance. In other words, if you have ten pills, you do not have to break the pills open and find out “We have enough 40% of the pill was the controlled substance, and the other was just add in”. So there is no defense to say there is only a portion of the total amount was the illegal substance, and whatever the item it is mixed with also is used to determine the weight of the item. Once you get up, most of the mandatories go from a three year mandatory and then you can have a seven year mandatory, then a fifteen year mandatory.
Some have twenty-five year mandatories. Most likely if you have 150 kilos or above of cocaine that you are trafficking, you will be looking at a life sentence. If someone gets killed while you are trafficking cocaine and other controlled substances, you could potentially be facing the capital felony, but the mandatories are really strict and do not take much to get there especially with the pill charges. They raise them. It used to be less than that, 4 grams it was a few years ago and they made some changes and made it a little more difficult to get to the trafficking amount. But, it is still there.
Can Drug Charges Be Expunged Or Sealed In Florida?
Yes, but it comes within parameters. You can have it expunged if it was dismissed by the state attorney, or no information, or acquitted at trial. You are going to have it sealed if you go before the court and enter a no contest plea and the court withhold adjudication does not say “I adjudicated guilty”, because no adjudication of guilty and you successfully complete your sentence, you can go back and have the record sealed. What people do not realize is that if we go down the road six months into the case on the verge of trial and the state decides they are going to dismiss the case, all those records that have been generated from your arrest by the police agency, from the clerk’s office, from the prosecution, those are all still available to anyone that wants to look at them.
There is a whole separate process. You can get your record expunged or sealed, but you have to meet the requirements and the statute. You cannot be a prior convicted felon, you cannot be a prior convicted misdemeanor and you cannot have to be guilty of any prior offense in order to have your records sealed or expunged. If they pick you up off the street and gave you a bad charge and you were able to beat that charge and you came in and you had a driving on the suspended license conviction ten years ago, you would not be able to seek that normal sealing under the statute or the formal expunction of the record. You have to be able to sign an affidavit that you have never been convicted of a criminal offense or a comparable ordinance violation in Florida.
A lot of people think, “If my case gets dismissed, everything went away”, it just stopped. Everything has been generated documentation wise, it is still there. They have companies that search the internet and pull up all the mugshots. I had a client that it cost him $1,500 to get his mugshot taken down. If you want them to take it off, they are going to do it for $1,500.
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