Florida’s Legal Disposal Defense

February 24, 2022 Criminal Defense, Drug Charges

Drug possession charges can bear very severe consequences. Often, these consequences include fines, jail time, and probation. Not to mention the collateral consequences that can come from drug convictions, like difficulty finding a job, housing, or receiving public benefits. Luckily, many defenses are available to combat drug charges. One of the defenses is commonly referred to as “legal disposal.”

What is the Legal Disposal Defense?

The legal disposal defense is an affirmative defense. That means, the defendant using this defense admits to the actions alleged by the State but asserts that they should be barred from criminal liability because of a justified reason or excuse. Essentially, it states that you took possession of a controlled substance but purely for the reason of legally disposing of it. For example, if a student is caught with drugs on school property, a school administrator will often take possession of the drugs in order to dispose of them. In that situation, the legal disposal defense could help the school administrator from being convicted for the possession of the confiscated drugs. In order to raise this affirmative defense, the substances must have been obtained without any unlawful or criminal intent and must have only been possessed for a short period of time. Furthermore, the substances must only have been possessed for the sole purpose of disposing of them in a timely manner.

Legal Disposal Defense Jury Instructions

The jury instructions covering the legal disposal defense are listed at 3.6(m) and state:

It is a defense to the charge of [possession of a controlled substance] [trafficking via possession] for a person to briefly possess a controlled substance for the sole purpose of legal disposal. In order to find the defendant briefly possessed a controlled substance for the sole purpose of legal disposal, you must find all of the following:

  1. (Defendant) possessed the controlled substance.
  2. (Defendant) acquired the controlled substance without unlawful intent.
  3. The possession of the controlled substance was brief and (defendant) sought to dispose of the controlled substance without delay.
  4. The temporary possession was solely for the purpose of legal disposal.

Some helpful definitions of key terms are also included in the jury instructions, including:

“Legal disposal” means to destroy or throw away the controlled substance or to turn in the controlled substance to a law enforcement officer.

To “possess a substance” means the defendant a) knew of the existence of the substance and b) intentionally exercised control over that substance.

Some applicable instructions that could apply in select situations include:

Control can be exercised over a substance whether the substance is carried on a person, near a person, or in a completely separate location. Mere proximity to a substance does not establish that the person intentionally exercised control over the substance in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the substance or the present ability to direct its control by another. 

For joint possession specifically, the instructions provide:

Possession of a substance may be sole or joint, that is, two or more persons may possess a substance.

This defense does not apply if (defendant) disposed of or surrendered a controlled substance because [he] [she] believed a law enforcement officer had discovered, or would have imminently discovered that [he] [she] was in possession of a controlled substance.

Tallahassee Criminal Defense Attorney

If you or a loved one has been charged with a drug crime in Florida, the legal disposal defense could play a pivotal role in your criminal case. Ensure that you hire a qualified Tallahassee criminal defense attorney well versed in Florida defenses who can help you navigate your criminal case. Don Pumphrey and the members of the legal team at Pumphrey Law Firm have decades of experience defending Floridians against drug crimes and will ensure every defense applicable is explored in your favor. Give us a call at (850) 681-7777 or send an online message to discuss your legal matter during an open and free consultation with an attorney in our legal team.

Written by Gabi D’Esposito

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