Pursuant to Florida Statute 893.13, a person found to be in “actual” or “constructive possession” of MDMA commits a third degree felony.
MDMA is often known as “Ecstasy” or “Molly”
To prove the crime of Possession of MDMA, the State must prove the following three elements beyond a reasonable doubt:
- The accused possessed a certain substance.
- The substance was MDMA.
- The accused had knowledge of the presence of the substance.
If the defendant is in possession of less than 10 grams of MDMA then they will be charged with a Third Degree Felony.
If the defendant is in possession of 10 grams or more of MDMA then they will be charged with Trafficking in MDMA.
In determining the appropriate charge, the weight of the pill is the controlling factor. The entire pill will be weighted and not just the active ingredient. This means that a person who possesses 9.5 grams of pure MDMA will be charged with a third degree felony while a person who has pills that weight a total of 10.5 grams with only 3 grams of pure MDMA will be charged with Trafficking in MDMA.
Actual Possession vs. Constructive 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:
- The controlled substance is in the hand of or on the person, or
- The controlled substance is in a container in the hand of or on the person, or
- The controlled substance is so close as to be within ready reach and is under the control
of the person.
To prove constructive possession, the state must show:
- That the accused had knowledge of the contraband/item ;
- That the accused had the ability to exercise dominion and control over the contraband/item.
If the premises on which contraband is found is in joint occupancy, rather than exclusive occupancy, knowledge of the presence of the contraband on the premises and the accused’s ability to maintain control over it will not be inferred, but must be established by independent proof. Such proof may consist either of evidence establishing that the accused had actual knowledge of the presence of the contraband, or of evidence of incriminating statements and circumstances, other than the mere location of the substance, from which a jury might lawfully infer knowledge by the accused of the presence of the contraband on the premises. Mere proximity [emphasis added] to contraband is not sufficient to establish constructive possession. J.M. v. State, 839 So. 2d 832 (Fla. 4th DCA 2003)
To support a finding of probable cause to arrest on a constructive possession theory, the State must establish by a factual showing that the arresting officer reasonably believes the accused has dominion and control over the contraband, knows it is in his presence, and knows of its illicit nature. Mere proximity to contraband found in a public place and in the vicinity of several other people does not warrant a finding that the police officer has probable cause to believe that the person or persons closest to the contraband possesses it. McGowan v. State, 778 So. 2d 354 (Fla. 2nd DCA 2001).
Upon conviction of a drug charge the Florida Department of Highway Safety and Motor Vehicles will suspended your driver’s license for two years.
If you are convicted of Possession of MDMA, you will be deemed a convicted felon. You will lose your right to vote, right to possess a firearm and many other rights. Additionally, you will never be able to have your record sealed or expunged.
For a free consultation to see how David J. Sobel can defend you, contact Mr. Sobel at 954-383-3000. You will be able to speak directly with Mr. Sobel 24/7.