Can you hire an expert witness to prove that a person is a "user" and not a "trafficker"? ~ "Best Answer" on AVVO.com ~ Call Michael A. Haber, Esq. @ 1-888-SHARK-8-1
Q: With drug possession, is hiring an expert witness to prove that the person is a user, instead of a trafficker, something done? When raided, 6 grams of heroin was found on the property of a couple, both users. Because of the law about 4 grams or more of heroin being considered trafficking, could that amount be considered for personal use, split between both of them, considering that when they were taken to jail, their high level drug abuse became apparent? What about the likelihood of that being the case, if the police also found a lot of narcotic pills in addition to the heroin? Seeking to get a feeling for the case's legal cost. Have gotten a couple of lawyer consults, but now have more questions. Trying to decide what is affordable, and if it would make a difference in this case or not. Please tell me what else may help you help me w/my question. I'll write it. Thank you so much for your consideration & time!
Answered . No. For possession purposes intent is generally irrelevant.
In FL, there is no practical difference between a user and a possessor, and the difference between a possessor and a trafficker is simply a matter of weight (i.e. how much of the controlled substance we are speaking about).
Trafficking implies but does not mean "sale". It is a distinction which is based entirely upon weight. In your case you are correct: With opioids the "cut-off" is 4 grams, under 4g = possession and 4g or over = trafficking (which kicks in minimum mandatory sentencing and bumps the offense up from a 3rd degree felony to a 1st degree felony, the difference being 5 vs 30 years exposure, respectively, in prison.
As for splitting the 6 grams that likely won't work. In Florida we subscribe to the "principal theory", meaning that all persons with knowledge and intent are equally responsible for a given offense (in this case both would be charged with trafficking - whether they will be convicted or not is another issue entirely) and drug use / abuse is NOT a defense in Florida. Moreover, the presence of additional controlled substances should result in additional possession charges.
All of this said, still, they may or may not enjoy viable defenses to the charges, affirmative or otherwise, or there may be factual, legal, procedural or substantive mechanisms by which to attack and beat the charges in their unique case, I do not know and the forum to find out is NOT on line; rather it is in the sanctity of attorney's offices, where statements are privileged and cannot be used against anyone.
You should bear in mind that Florida has 20 different Judicial Circuits, each of which deals with cases in its own manner. Moreover, each of those Judicial Circuits has a given number of criminal court Judges (each of whom is unique), as well as its own State Attorney's Office (each of which has its own policies and procedures), and a bunch of Assistant State Attorneys (who, although they operate on guidelines as established by their office, are each sentient and independent persons), and each case has its own set of variables ("free radicals" if you will) all of which combine to make it impossible to predict what will happen in a given case.
I know that you have spoken to a few lawyers already but the best way to get competent advise is going to be to find the right skilled, experienced, dialed-in and local 813 area criminal defense lawyer who can follow-up on your information with questions of her/his own, as well as review the police reports and whatever evidence that you may provide and then offer both an informed opinion and a viable plan of attack (I call this a "reasonable litigation objective"), and hopefully one which is within your budget.
I hope that I have been helpful in answering your question.
First, second and third: No attorney-client relationship exists by virtue of any Q&A with Michael A. Haber, Esq. on Avvo. Fourth: Anything that you post on Avvo (or on similar sites) or on any social media is by its nature public. It is essentially an admission / confession and can be introduced into evidence as a statement against your interest in a subsequent legal proceeding. Once posted you lose any reasonable expectation of privacy, so, as this is an open forum (with no privilege attached), please be extra careful when considering what to post online (forewarned is forearmed.)
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