Common Crimes, Penalties, and Defenses in Florida
By Jonathan Blecher on July 5, 2023
Drug Possession and Drug Trafficking
Drug-related offenses are common in Florida. This state is on international drug smuggling routes, has a lively party scene, and no lack of celebrities and athletes. It makes sense that Florida has a significant amount of drug activity. Cocaine, Marijuana, Heroin, Fentanyl, Ecstasy, and prescription medications are frequently involved in these cases.
Drug possession is when you have a drug on your person (or constructively), in a vehicle, or a home/business, whether it’s for personal use or to sell. If you’re caught with drugs, charges can range from a misdemeanor to a felony, depending on the type of drug and how much you have.
If you’re caught with a small amount of a drug for personal use, the charges are usually less severe. But if you’re caught with a large amount of drugs or if you have paraphernalia like scales and baggies, it’s more likely to be considered intent to sell. And if you’re caught with a lot of cash, that could also be used as evidence that you were selling drugs.
Drug crimes can be classified by the degree of punishment. The first level is possession of drug paraphernalia like bongs, needles, grinders, pipes, and rolling paper. Next up the ladder is simple possession, where you’re caught with a small quantity of drugs for personal use. Even a small quantity of some drugs like cocaine, oxycodone, and heroin are considered felonies. The third is possession with intent to deliver, sell, or distribute. A small quantity of marijuana- normally charged as a misdemeanor- can be elevated to a felony if it is packaged in a way that indicates an intent to sell. The fourth category is trafficking, where excessive amounts of certain drugs will get you into that dilemma.
Drug Offense Defenses
Every case is fact-specific, and prior court decisions will always affect how your defense is structured. Here’s a basic guide to defenses to a drug possession/trafficking charge:
Unlawful search and seizure: You can challenge the legality of the search and seizure of drugs by arguing that law enforcement violated your Fourth Amendment rights. If the evidence was obtained illegally, it could be suppressed as “fruits of the poisonous tree.”
Lack of possession or knowledge: You could argue that you were unaware of the drugs’ presence or did not have control or possession of the drugs.
Crime lab analysis: Have an independent analysis of the substance to confirm that it’s an illicit drug. Mistakes in the testing process, weight, and chain of custody can undermine the prosecution’s case.
Communication evidence: Present text messages, emails, or other forms of communication that demonstrate a lack of intent to commit violence or show a non-violent context to the situation.
Entrapment: Claim that you were induced or coerced by law enforcement into committing a drug-related offense that you would not have otherwise committed.
Drug Offense Penalties
Drug offense penalties can be found in Section 893 of the Florida Statutes.
If you were caught with more than 10 grams of a Schedule One drug, you could be charged with a first-degree felony. The penalty is up to 30 years in jail and/or a fine of up to $10,000.
If you possess more than 10 grams of any other controlled dangerous substance, it’s a third-degree felony, and you may have to spend up to five years in prison and/or pay a fine of up to $5,000.
If you have up to 20 grams of marijuana, then you could be charged with a first-degree misdemeanor and face a penalty of up to one year in prison and/or a $1,000 fine. If you possess more than 29 grams of marijuana, you could spend up to five years in prison and/or pay a fine of up to $5,000.
When it comes to trafficking, the minimum weight limit is crucial, which includes the following:
- For marijuana, it’s 300 plants or 25 pounds
- Cocaine is 28+ grams
- LSD is 1+ gram
- Hydrocodone is 14+ grams
- Oxycodone is 7+ grams
- MDMA/ecstasy is 10+ grams
The sentence will depend on the drug you possess and the quantity involved. You could receive a minimum of three years in prison and/or must pay a fine of up to $50,000, or you could be sentenced to life without the possibility of parole.
You should also know that if there is a mandatory minimum sentence, you can’t get out of prison early or get credit for time served. Additionally, if you are convicted of any drug crime, your driver’s license will be revoked for a minimum of six months.
Assault and Battery
Florida law defines Assault as an “intentional, unlawful threat by word or acts to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” Assault is a second-degree misdemeanor. If you’re charged with intentionally attempting to attack someone, you face a 60-day jail term and/or a maximum fine of $500.
It gets more serious in circumstances when a weapon is used during the assault. That raises the level of the offense to a third-degree felony, punishable by a five-year jail term and/or a maximum fine of $5,000.
Florida Law defines Battery as “actually and intentionally touching or striking another person against the will of the other; or intentionally causing bodily harm to another person.”
A “simple” battery is a misdemeanor, carrying a maximum of one year in jail and a $1,000 fine. However, a person with one prior conviction for battery, aggravated battery, or felony battery and who commits any second or subsequent battery commits a felony of the third degree. This is punishable as a third-degree felony carrying a maximum 5-year prison sentence and a $5,000 fine.
Aggravated Battery is defined as “Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or uses a deadly weapon.
A person commits aggravated battery if the person who was the victim of the battery was pregnant at the time of the offense and the offender knew or should have known that the victim was pregnant.
Domestic Violence: “Domestic violence” means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.
Assault or Battery Defenses
Every case is fact-specific, and prior court decisions will always affect how your defense is structured. Here’s a basic guide to defenses against an Assault or Battery charge:
Self-defense: Assert that you acted to defend yourself or others from immediate physical harm or the threat of harm. Florida has a Stand Your Ground law that allows individuals to use deadly force if they reasonably believe it is necessary to prevent imminent death or great bodily harm to themselves or others.
Additionally, the law authorizes deadly force to prevent the imminent commission of a forcible felony. Florida law doesn’t require individuals to retreat to a place of safety instead of using deadly force.
Lack of intent: Argue that you did not intend to cause harm or that the alleged actions were accidental. Intent is a fact question for the jury and will be established by the circumstances of each case.
Alibi: Provide evidence or witnesses that can prove you were not present at the location where the assault and battery allegedly took place. This ties into the defense of “identity” and can be proved by testimonial evidence, documentary evidence, tangible evidence, or electronic evidence.
Credibility issues: Challenge the credibility of the prosecution’s witnesses by highlighting inconsistencies or biases in their statements. However, a documented history of conflict with the victim can help or hurt a defense.
Assault or Battery Penalties
An assault conviction can result in up to 60 days in jail and a fine of up to $500.
Battery and Domestic Violence Battery are classified as first-degree misdemeanors. Penalties include up to 364 days in jail and a $100 fine. These crimes are enhanced to felonies if the alleged victim is pregnant or over 65 years old.
Aggravated Assault is a third-degree felony, carrying a 5-year prison sentence and a $5,000 fine.
Aggravated Battery is a second-degree felony, carrying a 15-year prison sentence and a $10,000 fine.
Driving Under the Influence/Boating Under the Influence
Driving Under the Influence (DUI) and Boating Under the Influence (BUI) are common offenses in Florida. Florida has strict laws and actively enforces them throughout the state. Even first offenders face mandatory penalties and a conviction that will stay on their record for life. BUI is a large problem too, as Florida has over 1,300 miles of coastline and a vibrant boating lifestyle.
What are the basics elements of a DUI charge?
The State must prove guilt beyond a reasonable doubt to get a DUI conviction. The Florida Standard Jury Instructions define the elements of a DUI as follows:
1. Defendant drove or was in actual physical control of a vehicle.
2. While driving or in actual physical control of the vehicle, the defendant:
a. was under the influence of alcoholic beverages, a chemical substance, or a controlled substance to the extent that their normal faculties were impaired
b. had a blood or breath-alcohol level of .08 or more grams of alcohol per 100 milliliters of blood or 210 liters of breath.
In the simplest terms, the State must prove that you were driving a vehicle (car, bike, motorcycle, golf cart, horse, tractor, etc.) or that you were in or on the vehicle and had the capability to operate it. Despite what many people think, even sitting in your car, engine off, with the keys within reach, is considered actual physical control. If the car was inoperable at the time, the State would have a difficult time proving that the car was capable of “self-propelled mobility.”
What if the driver doesn’t take a breath test? The State can try to prove guilt beyond a reasonable doubt that you were “under the influence of alcoholic beverages to the extent that your normal faculties were impaired. The State will attempt to use the observations of the police, statements that you may have made, your driving pattern, crash evidence, and performance on physical sobriety tests to prove their case. Officers testify in court that the exercises aren’t pass/fail, but they are trained to look for any minor slip, slur, or misstep and count it against you.
What are normal faculties?
Florida Statute 316.1934(1) defines them this way: “Normal faculties include, but are not limited to, the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and in general, to normally perform the many mental and physical acts of our daily lives.”
How do Boating Under the Influence cases differ?
How the State will try to prove BUI is more challenging because of the circumstances under which people are stopped and tested. There are environmental facts that play a significant role in the officer’s observations, such as motion, vibration, engine noise, sun, wind, and spray. Research shows that four hours of exposure to noise, vibration, sun, glare, wind, and other motions on water produces a kind of fatigue, or “boater’s hypnosis,” which can simulate impairment.
- First Offense
- Fine: $500 to $1,000
- Jail time: Up to 6 months
- License revocation: 180 days to 1 year
- Ignition interlock device (IID): Possible for 6 months (required if BAC of .15% or more, or a minor was in the car)
- Second Offense
- Fine: $1,000 to $2,000
- Jail time: Up to 9 months
- License revocation: 180 days to 1 year (5 Years if the conviction is within 5 years of a prior)
- IID: 2 years
- Third Offense
- Fine: $2,000 to $4,000
- Jail time: Up to 5 years (can be a felony)
- License revocation: 10 years
- IID: 5 years
In addition, there’s court costs, attendance at a DUI school, treatment, and community service hours.
There are dozens of defenses used to fight a DUI charge. Some of the most common defenses are:
Illegal Stop or Arrest. If the police officer did not have reasonable suspicion to stop you or probable cause to arrest you, then the evidence obtained during the stop or arrest may be suppressed. This might include the results of a breath test, field sobriety tests, or statements.
Inaccurate Breath, Blood, or Urine Test Results. Breath, blood, and urine are not always accurate. The amount of time between your last drink, possible mouth alcohol, and medical conditions like diabetes can play a role. Breath, blood, and urine testing instruments must be calibrated monthly. If the results were inaccurate, the results could either be suppressed, or the jury could be instructed to disregard it. The breath testing officer must follow specific rules about observing you for 20 minutes before the test.
Challenging the Officer’s Observations of Impairment. This is often a crucial part of the State’s case- but it’s only an opinion- particularly if there’s no video evidence. The officer’s observations can be subjective and open to interpretation.
Affirmative Defenses. The most common are necessity and duress. They can be tricky since you must admit that you committed the offense but have an excuse because of other circumstances.
Improper Implied Consent Warnings. Show that implied consent warnings weren’t given correctly. If so, your alleged “refusal” to submit to a test may be inadmissible.
Inaccurate Roadside Sobriety Exercises. While police officers use field sobriety tests (FSTs) to establish probable cause for a DUI arrest, they are not always accurate. In fact, many studies have shown that their accuracy depends on the type of exercise and the individual being tested, despite being “validated” by the NHTSA (National Highway Traffic Safety Administration).
For example, the walk-and-turn test has an accuracy rate of only 68%. This means that for every 100 people who take the test, 32 of them will be incorrectly identified as impaired. The one-leg stand test has an accuracy rate of 65%, and the horizontal gaze nystagmus test has an accuracy rate of 77%.
Here are some of the factors that can affect the accuracy of FSTs:
- The driver’s age, height, weight, and gender.
- The driver’s medical conditions, such as inner ear problems or balance disorders.
- The driver’s level of fatigue.
- The environmental conditions, such as uneven surfaces or poor lighting.
- The way the police officer administers the test.
Theft offenses, such as shoplifting, burglary, and grand theft, are a big deal in Florida. Additionally, robbery, which involves using force or threat during a theft, is widespread. Our large tourist population makes Miami susceptible to these offenses.
In general, Florida defines theft as follows:
(1) A person commits theft if they knowingly obtain or use, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
(a) Deprive the other person of a right to the property or a benefit from the property.
(b) Appropriate the property to their own use or to the use of any person not entitled to the use of the property.
Petit Theft (petty theft): First-degree misdemeanor
Petit Theft cases are frequently simple “shoplifting” charges where someone takes property from a store without paying. These cases have been made more complicated since many stores have instituted self-checkout stations, which can be a challenge to navigate. Customers may find self-checkout machines confusing to use, they may not know how to scan items properly, or they may not understand the prompts on the machine. Also, self-checkout machines occasionally malfunction. Some common problems include machines that don’t scan items properly, don’t accept payment, and simply don’t work.
Grand Theft: Third-degree felony
For a grand theft to be considered a third-degree felony, the property stolen should be valued between $750 and $20,000. You can also face these charges if the property stolen was a:
- Stop sign
- Any amount of controlled substance
- Fire extinguisher
- Motor vehicle
- Commercially farmed animal
- Testamentary instruments (will, codicil)
A third-degree felony can result in 5 years imprisonment and a maximum fine of $5,000.
Grand Theft: Second-degree felony
If the value of the property stolen ranges from $20,000 to less than $100,000, a grand theft offense will be charged as a second-degree felony. These charges can result in up to 15 years imprisonment and a fine of up to $10,000.
You can also be charged with a second-degree felony if the property stolen was the property of law enforcement, emergency medical equipment valued at more than $300, or cargo entering interstate or intrastate commerce valued at less than $50,000.
Grand Theft: First-degree felony
In Florida, theft is charged as a first-degree felony if the amount stolen exceeds $100,000. This charge carries a penalty of up to 30 years imprisonment and a maximum fine of $10,000. Additionally, you can also face these charges if the property stolen was cargo entering interstate or intrastate commerce valued at more than $50,000. While committing the offense, the defendant caused more than $1,000 in real or property damage.
Theft from a person 65 years or older
Florida Statute 812.0145 establishes the penalties for theft committed against persons of ages 65 years or older:
First-degree felony: the assets or property stolen is valued at $50,000 or more.
Second-degree felony: the value stolen ranges from $10,000 and less than $50,000.
Third-degree felony: the assets or property involved in the theft were valued at $300 but less than $10,000.
Defenses for Theft Charges
- Lack of intent
- Mistake of ownership
- The defendant acted out of necessity or duress
- Inflated value
- Obtaining or using the property for lawful purposes
- Age of the alleged victim