Legal Question in Criminal Law in Florida

POSSESSION OF COCAINE:

Certain drugs and chemical substances are by law known as �controlled substances.� (Specific substance alleged) is a controlled substance.

To prove the crime of (crime charged), the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) possessed a certain substance.

2. The substance was (specific substance alleged).

3. (Defendant) had knowledge of the presence of the substance.

Definition.

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:

a. The controlled substance is in the hand of or on the person, or

b. The controlled substance is in a container in the hand of or on the person, or

c. The controlled substance is so close as to be within ready reach and is under the control of the person.

Give if applicable.

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.

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 if the controlled substance is 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.

Possession may be joint, that is, two or more persons may jointly possess an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article.

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.

Knowledge of the illicit nature of the controlled substance. Give if applicable. � F.S. 893.101(2) and (3), Fla. Stat.

Knowledge of the illicit nature of the controlled substance is not an element of the offense of (insert name of offense charged). Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that (defendant) was in actual or constructive possession of the controlled substance.

If from the evidence you are convinced that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find (defendant) guilty.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find (defendant) not guilty.

POSSESSION OF PARAPHERNALIA:

To prove the crime of Use or Possession of Drug Paraphernalia, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) used or had in [his] [her] possession with intent to use drug paraphernalia.

2. (Defendant) had knowledge of the presence of the drug paraphernalia.

Definitions.

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:

a. The paraphernalia is in the hand of or on the person,

b. The paraphernalia is in a container in the hand of or on the person, or

c. The paraphernalia is so close as to be within ready reach and is under the control of the person.

Give if applicable.

Mere proximity to a paraphernalia is not sufficient to establish control over that paraphernalia when it is not in a place over which the person has control.

Constructive possession means the paraphernalia 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 if the controlled substance is 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.

Possession may be joint, that is, two or more persons may jointly possess an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article.

If a person has exclusive possession of paraphernalia, knowledge of its presence may be inferred or assumed.

If a person does not have exclusive possession of paraphernalia, knowledge of its presence may not be inferred or assumed.

Drug Paraphernalia. � 893.145, Fla. Stat.

The term �drug paraphernalia� means all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter. It includes, but is not limited to:

Give specific definition as applicable.

1. Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived.

2. Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances.

3. Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance.

4. Testing equipment used, intended for use, or designed for use in identifying, or in analyzing the strength, effectiveness, or purity of, controlled substances.

5. Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances.

6. Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose, and lactose used, intended for use, or designed for use in cutting controlled substances.

7. Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, cannabis.

8. Blenders, bowls, containers, spoons, and mixing devices used, intended for use, or designed for use in compounding controlled substances.

9. Capsules, balloons, envelopes, and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances.

10. Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances.

11. Hypodermic syringes, needles, and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body.

12. Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing cannabis, cocaine, hashish, or hashish oil into the human body, such as:

a. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls.

b. Water pipes.

c. Carburetion tubes and devices.

d. Smoking and carburetion masks.

e. Roach clips: meaning objects used to hold burning material, such as a cannabis cigarette, that has become too small or too short to be held in the hand.

f. Miniature cocaine spoons, and cocaine vials.

g. Chamber pipes.

h. Carburetor pipes.

i. Electric pipes.

j. Air-driven pipes.

k. Chillums.

l. Bongs.

m. Ice pipes or chillers.

Relevant factors. � 893.146, Fla. Stat.

In addition to all other logically relevant factors, the following factors shall be considered in determining whether an object is drug paraphernalia:

1. Statements by an owner or by anyone in control of the object concerning its use.

2. The proximity of the object, in time and space, to a direct violation of this act.

3. The proximity of the object to controlled substances.

4. The existence of any residue of controlled substances on the object.

5. Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom [he] [she] knows, or should reasonably know, intend to use the object to facilitate a violation of this act. The innocence of an owner, or of anyone in control of the object, as to a direct violation of this act shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia.

6. Instructions, oral or written, provided with the object concerning its use.

7. Descriptive materials accompanying the object which explain or depict its use.

8. Any advertising concerning its use.

9. The manner in which the object is displayed for sale.

10. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products.

11. Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise.

12. The existence and scope of legitimate uses for the object in the community.

13. Expert testimony concerning its use.

Knowledge of the illicit nature of the controlled substance. Give if applicable. � 893.101(2) and (3), Fla. Stat.

Knowledge of the illicit nature of the controlled substance is not an element of the offense of (insert name of offense charged). Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense. (Defendant) has raised this affirmative defense. However, you are permitted to presume that (defendant) was aware of the illicit nature of the controlled substance if you find that (defendant) was in actual or constructive possession of the controlled substance.

If from the evidence you are convinced that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find (defendant) guilty.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find (defendant) not guilty.