Defenses to Unlawful Use of a Two-Way Communications Device

July 11, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

In Florida, unlawful use of a two-way communications device is a serious felony offense (Fla. Stat. 934.215). As a “derivative offense,” unlawful use is charged alongside one or more felonies that the two-way communications device was allegedly used to facilitate. 

Even if the underlying felony is not completed, someone may nevertheless be charged with unlawful use of a two-way communications device. Berry v. State, 306 So.3d 1256 (Fla. 2d. DCA 2020)

Unlawful use of a two-way communications device is a third-degree felony, punishable by up to 5 years in prison and a $5,000 fine. Though this is an extremely serious charge, many defenses exist if someone is accused of unlawful use in Florida. This blog will explore lawful defenses to unlawful use of a two-way communications device.

For someone to be proven guilty of the offense of unlawful use of a two-way communications device, the State must prove the following elements beyond a reasonable doubt:

• The defendant used a two-way communications device (such as a phone, tablet, computer, walkie-talkie, radio, messaging application or social media platform, etc.)
• The purpose of the communication was the commission or facilitation of an underlying felony (such as a drug deal, online solicitation of a minor for sex, etc.)
• The defendant did so knowingly

Unlawful use of a two-way communications device is a third-degree felony punishable by up to 5 years in prison and a $5,000 fine.

Note: There is no official definition of a “two-way communications device” under Florida law. Though this is understood to apply to devices such as phones, tablets, or walkie-talkies, some have brought challenges to the law on the grounds that it is unconstitutionally vague.

If someone is alleged to have committed the felony offense of unlawful use of a two-way communications device (Fla. Stat. 934.215), many legally valid defenses are available. One of these is the lack of a commission of an underlying felony. As the statute requires that the device was used to facilitate a felony, the charge fails if the State cannot prove the underlying felony.

In cases involving someone charged for online solicitation or facilitating a felony such as a sale of controlled substances, unlawful use of a two-way communications device is often charged alongside these offenses (State v. Shelley, 176 So.3d 914 (Fla. 2015); Holt v. State, 173 So.3d 1079 (Fla. 2015); Berry v. State, 306 So.3d 1256 (Fla. 2d. DCA 2020)).

But as the statute requires the facilitation of an underlying felony through the communications, a defendant is entitled to acquittal on an unlawful use charge if there is no separate felony found to be actually committed or attempted. This is because unlawful use of a two-way communications device is a “derivative charge” – criminalizing otherwise legal activity only if it can be tethered to a separate felony.

Another defense is that an unlawful use of a two-way communications device violates double jeopardy protections of the accused (under the U.S. Constitution’s Fifth Amendment). In cases like Shelley, courts have recognized that if unlawful use charges arise from the same course of conduct as the underlying felony, these charges violate double jeopardy under the U.S. Supreme Court’s Blockburger test. 

A double jeopardy defense to an unlawful use of a two-way communications device charge is particularly potent in cases involving online solicitation of a minor and traveling to meet a minor. Courts have held that if both the alleged solicitation (Fla. Stat. 847.0135(3)) and unlawful use charges stem from the same messages or set of messages, the unlawful use charge must be dismissed on double jeopardy grounds. 

Note: This argument also applies if the defendant is charged with traveling to meet a minor (Fla. Stat. Section 847.0135(4)). Batchelor v. State, 193 So. 3d 1054 (Fla. 2d DCA 2016).

Another defense to an unlawful use of a two-way communications device charge is that the device itself was not used to “facilitate” the underlying felony. If the device was incidentally possessed during the crime or used after the crime (to call for a ride, for example), this does not qualify as unlawful use short of causal connection to the felony. Sanchez v. State, 270 So.3d 515 (Fla. 2d. DCA 2019)

In rare cases, a viable defense may be that the device is not actually a two-way communications device. Though the term is not formally defined, a case involving a device such as a GPS tracker or a one-way radio may involve a defense that the “two-way communications device” was not actually a two-way communications device at all.

An additional defense is that the defendant did not actually send the texts or make the calls that are alleged to have facilitated the commission of the underlying felony.

Given the complexities of the digital world, there is the potential for someone to have “spoofed” a phone number or account. This defense is particularly applicable in cases where:

• There is no direct evidence (like admissions, video, fingerprints, etc.) that the defendant actually used the two-way device in a manner that violates the statute
• There is only circumstantial evidence (such as subscriber name and phone number)

Entrapment Defense

Finally, there is the defense of entrapment. Though entrapment is typically used as a defense to the underlying felony, this can also serve as a defense to the derivative unlawful use charge.

There are two types of entrapment defenses, either of which may be used depending on the facts of a case:

• Objective entrapment: Law enforcement conduct that is so egregious, it violates the due process rights of the defendant and contaminates the legal proceedings against them. Dippolito v. State, 275 So.3d 653 (Fla 4th DCA 2019). 
• Subjective entrapment: If a subjective entrapment defense is used (Fla. Stat. Section 777.201), the defense must first prove by a preponderance of the evidence that the State induced the defendant to commit the offense. If inducement is established, the State must prove beyond a reasonable doubt that the defendant was predisposed to act criminally. Munoz v. State, 629 So. 2d 90 (Fla. 1993). If the State cannot do so, the charge fails on entrapment grounds.

In addition to the many lawful defenses to unlawful use of a two-way communications device, there are various “defenses” to the charge that are not legally valid in Florida. These include:

• “It was just one text/a short call”: If the elements of the statute are satisfied, the crime is committed, regardless of how many texts or calls were exchanged
• “The device belonged to someone else”: If someone uses the device to commit the felony, the fact that it may technically belong to another person is not itself a defense. However, if there is dispute about who sent the allegedly criminal texts and calls, this fact could be relevant.
• “The underlying felony (drug deal/illegal sex etc.) didn’t actually occur”: As long as the device was used to facilitate the commission of the felony, it is still criminal.

In sum, unlawful use of a two-way communications device (Fla. Stat. 934.215) is a very serious felony punishable by up to 5 years in prison and a $5,000 fine. As it is a “derivative charge,” a conviction for unlawful use is dependent on whether the finder of facts finds a defendant guilty of the underlying felony.

Various defenses to the charge of unlawful use of a two-way communications device exist. These include defeating the underlying felony charge, alleging a double jeopardy violation, entrapment, the device failing to qualify as a two-way communications device, someone else sending the alleged communications, and more. 

Unlawful use of a two-way communications device is a very serious charge in Florida, and can carry lengthy prison sentences as well as hefty fines. If someone is charged, it is vital to secure experienced and aggressive legal representation as soon as possible. 

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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