Drug Possession Florida Jury Instruction

Drug Jury Instruction

Florida Drug Charge Defense Attorney provides the 2011 Standard Jury Instructions used in Drug Cases involving Florida Statutes § 893.13. These are the instructions that are read to the Jury just before they retire for their deliberations.

Drug Charges? Call Me Toll Free 1-877-793-9290 .

§ 893.13(6)(a), Fla. Stat.

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.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

Note § 893.13(6)(b), Fla. Stat., if the charge involves possession or delivery without consideration of not more than 20 grams of cannabis.

This instruction was adopted in 1981 and amended in 1989 [543 So. 2d 1205], 1997 [697 So. 2d 84], and 2007 [969 So. 2d 245]. See also SC03-629 [869 So. 2d 1205 (Fla. 2004)].

Drug Charges? Call Me Toll Free 1-877-793-9290 .

Drug Possession Florida Standard Jury Instruction Florida Drug Charge Defense Attorney 


Source: http://www.floridasupremecourt.org/jury_instructions/instructions.shtml#

Search Warrant | Tampa Criminal Defense

Car in Driveway

Tampa Criminal Defense Attorney / Lawyer has just studied a new case where there was a search of a vehicle located within the curtilage of a residence that was the target of a search warrant.  The curtilage of a residence is most deserving of protection from searches without a warrant of beyond the scope of a Search warrant. The "vehicle  was partially overlapping a portion of the driveway to the residence." There were a firearm and drugs located within  the vehicle.  The appeals court ruled  the vehicle was not within the curtilage of the residence and reversed the drug conviction.

The complete Opinion Search Warrant for car parked in the yard is here for free.

"The term “curtilage” in the Fourth Amendment context describes the area around a home that is “intimately tied to the home itself.”  United States v. Dunn, 480 U.S. 294, 301 (1987). “[T]he extent of the  curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself.”   Id.  at 300.  Clearly, the legal  boundaries of a given piece of property do not necessarily define its curtilage for Fourth Amendment purposes."

"To determine the scope of the curtilage to a particular residence, we must consider the four factors identified in Dunn.  Wilson v. State, 952 So. 2d 564, 568-69 (Fla. 5th DCA 2007)."

Four Factors to Define Scope of Warrant:

Proximity of the area claimed to be curtilage to the home;

Area is included within an enclosure surrounding the home;

Nature of the uses to which the area is put; 

Steps taken by the resident to protect the area from observation by people passing by.

Is there a Search Warrant is your case? Call Me Toll Free 1-877-793-9290.

Doctor Shopping Records Tossed

Drug Records Thrown Out

Drug Charge Defense Attorney has been researching use of medical records by police in doctor shopping cases. One court just ruled the doctor's records were inadmissible in evidence. "The state charged [the defendant] with oxycodone trafficking, contrary to subsection 893.135(1)(c)1.a., Florida Statutes (2009), and withholding information from a practitioner, which is prohibited by subsection 893.13(7)(a)8., Florida Statutes (2009). Subsection 893.13(7)(a)8. proscribes the withholding of information from a practitioner to obtain a prescription for a controlled substance, when the person has obtained the same or a similar prescription from another practitioner within the past thirty days. This practice is known as doctor-shopping."

 Doctor Shopping Charges? Call me Toll Free to Discuss 1-877-793-9290.

The trial judge granted the defendant's motion to suppress as to the patient contracts and doctors’ statements. The defense "argued [the detective] violated section 456.057, Florida Statutes (2009), which provides for the confidentiality of medical records and information and sets forth those circumstances that allow law enforcement to obtain them. Second, he contended that [the detective’s] taking of the items violated his right to privacy under Article I, Section 23 of the Florida Constitution. Finally, [the defendant] asserted the seizure was illegal under Article I, Section 12 of the Florida Constitution."

"To obtain medical records, the statute requires law enforcement to obtain a subpoena after notice to the patient."  The court held, "we hold that the patient contracts that [the detective] obtained from [the defendant's] doctors were medical records protected by subsection 457.057(7)(a)."

The court then turned to statements made by the doctor: "the statute creates only four exceptions that allow doctors to break the privileged relationship and disclose confidential information:

(1) to other health care providers involved in the care and treatment of the patient; 

(2) if permitted by written authorization from the patient; 

(3) if compelled by subpoena; and 

(4) to attorneys, experts, and other individuals necessary to defend the physician in a medical negligence action in which the physician is or expects to be a defendant. No other disclosures are statutorily permitted . . . ."

However, the court also ruled Florida State "893.07(4), Florida Statutes (2009), empowered [the detective] to obtain the pharmacy records without a warrant or subpoena . . . ."

The court then concluded: "Suppression is the only remedy to sanction this police misconduct and deter similar misconduct. The danger of the law enforcement practices in this case are amply demonstrated by the willingness of medical professionals to surrender private medical records and engage in discussions regarding private and privileged communications concerning their treatment of individuals on the mere naked display of authority by law enforcement."

The complete opinion is available for free here.

Doctor Shopping Charges? Call me Toll Free to Discuss 1-877-793-9290.

Doctor Shopping 893