Eric J. Dirga, P.A.

A Florida Trial Attorney

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Arrested For Marijuana Possession

Defenses To Marijuana Possession

Criminal Defense Representation - Orlando, Florida

Last Updated: May 27, 2016

If you have been arrested for marijuana possession you are now facing potentially life changing consequences. Do not take it lightly. Most people caught with pot usually bond out of jail immediately or they are just given a Notice to Appear. Either way, you have some major decisions to make in your near future, especially if this is your first offense. The first court date is important.

What To Expect When Arrested For Cannabis

The Police Encounter

When the police suspect you possess marijuana the first thing they will want to do is recover the evidence (recover the cannabis). They have several methods to accomplishing that objective:

  • The police can ask to search.
  • The police can search based upon reasonable suspicion.
  • The police can search based on an unrelated offense

If the police ask to search you they are asking you to waive your Fourth Amendment Right to be free from warrantless searches. You should never give up your Rights. If law enforcement asks you for consent to search the answer should always be no if you know you are breaking the law. However, the police do not need your permission to search if they have reasonable suspicion to believe that you have, are, or are about to break the law.

Reasonable suspicion for cannabis is usually the smell of recently burned marijuana. The smell of burnt cannabis allows the police to search you (if they smell it on you) and your car (if they smell it in the car). If you are arrested for an unrelated offense, e.g., driving with a suspended license, the police can search you and the interior portion of your car (under some circumstances). If the car is towed an inventory search of the entire car will include the trunk.

Your First Court Date: The Arraignment

If you are awaiting your first court date for a marijuana possession charge it is called an Arraignment. The purpose of this hearing is to have the Court tell you what the State is charging you with. You may have already been told you were arrested for possessing pot but sometimes the State will file additional charges beyond what you were arrested for. At this hearing the Court will explain all the charges that you face. REMEMBER: If you hire an attorney to represent you prior to the arraignment you will not have to go to this court date.

The arraignment is where a lot of judges and prosecutors like to reduce their caseload. They do this by making offers to unrepresented defendants that seem reasonable. However, entering a plea to a drug offense without fully comprehending the consequences is not a choice you should make. By entering a plea of guilty or no contest you give up all your rights. Collateral consequences that occur afterwards are not a basis to withdraw your plea. Bottom line, you will have to live with all the things that occur after the plea that you did not consider.

Types of Plea At Arraignment

You have three choices: GUILTY, NOT-GUILTY, and NO-CONTEST. By entering a guilty plea you are admitting to have committed the offense and the Court can sentence you there. If you enter a plea of not-guilty you are telling the Court that you want the State to prove their allegations against you. If you enter a no-contest plea it will be the same as a guilty plea and the Court could sentence you immediately. I suggest you ALWAYS ENTER A PLEA OF NOT-GUILTY at the arraignment so you can consult with an attorney. That is your Right.

Beware The Motives Of The Prosecutor At Arraignment

You should always be worried about saying your guilty or pleading no-contest at the arraignment. Often times the prosecutor for the State will make you an offer hoping you will plea and resolve the case so that he or she does not have to do more work. Initially, that offer will sound good but there are consequences to being convicted of a drug possession charge in Florida. The biggest consequence includes a 1-year driver's license revocation and an inability to expunge or seal the arrest off of your record.

Defenses To A Possession Charge

There are several defenses to a possession of marijuana charge. Some revolve around the term possession. Where and how the police found the pot can also involve a defense. Of course, if you believe you are not guilty of what you have been charged with then you probably have a defense.

Giving The Police Permission To Search

Most often the police will simply ask you to allow them to search you or your property. It is important to remember that you never have to allow the police to search you or your property. This is called Waiving Your Rights. If they ask and you say it is okay for them to search then you have waived your Right to not be searched and the search is legal.

Reasonable Suspicion that You Possess Cannabis

If the police have reasonable suspicion that you have, are, or about to commit a crime they can stop you and investigate. This puts the police in a postion to do a pat-down search for their safety while they are conducting their investigation. If they smell the odor of burnt cannabis eminating from you (your hair, clothes, breath) they then have the legal ability to conduct a more extensive search of your person. Remember that smoking pot makes you smell like burnt cannabis. Arguing that the police could not smell the pot is not an effective defense.

Constructive Possession

Constructive possession is a legal term that means that although you did not physically possess something you are considered to have knowledge of the item and exercise dominion and control over the item. You can be found guilty of constructively possessing marijuana. The easiest way to constructively possess something is to admit that the item, in this case - marijuana, is yours. Your admission is legally sufficient to have a jury find that you illegally possessed (had dominion and control over the) pot. It is a defense to the crime of possession of marijuana to claim lack of possession.

Go to the contructive possession case law page for more information.

Arrested and charged with a drug offense? Call us now at 407-841-5555 or email us directly at

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