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Legal Disposal

What if you take possession of a controlled substance for the purpose of legally disposing of the substance? Florida law contains a defense for the temporary possession of a controlled substance for legal disposal. The defense is an affirmative defense that can be asserted at trial or during a pre-trial motion to dismiss.

What if you took possession of a controlled substance only for the purpose of disposing of it? One example might be that a principal at a private school confiscates drugs from a student. The principal intends to deal with the matter from a disciplinary action at the school but does not intend to call law enforcement to conduct a criminal investigation.

Can the principal be prosecuted for the temporary possession of the drugs? In that type of case, the legal disposal defense would come into play.

Attorney for the Legal Disposal Defense in Florida

If you were arrested for possession of a controlled substances or a drug trafficking crime, you should be aware of important defenses that might excuse your conduct. Those defenses can include the legal disposal defense.

Call the drug defense attorneys at the Sammis Law Firm to discuss your case. We represent clients charged with drug crimes throughout Tampa and Hillsborough County, Florida. Call (813) 250-0500 today to discuss the case.


Jury Instructions for the Legal Disposal Defense

The best way to understand Florida's affirmative defense for legal disposal of a controlled substance is to read the standard jury instructions which were adopted in 2013. The standard jury instructions found at 3.6(m) provide:

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; and
  4. The temporary possession was solely for the purpose of legal disposal.

Definitions.

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

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.

There is no statute for the defense of “legal disposal” and the case law is silent as to which party bears the burden of persuasion of the affirmative defense and the standard for the burden of persuasion.

Under the common law, defendants had both the burden of production and the burden of persuasion on an affirmative defense by a preponderance of the evidence.

The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution).

In the absence of case law, trial judges must resolve the issue via a special instruction. See the opinion in Dixon v. United States, 548 U.S. 1, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006), for further guidance.

If burden of persuasion is on the defendant:

If you find that defendant proved (insert appropriate burden of persuasion ) that [he][she] temporarily possessed the controlled substance solely for legal disposal, you should find [him][her] not guilty. If the defendant did not prove (insert appropriate burden of persuasion ) that [he] [she] temporarily possessed the controlled substance solely for legal disposal, you should find [him][her] guilty if all the elements of the charge have been proven beyond a reasonable doubt.

If burden of persuasion is on the State:

If you find that the State proved (insert appropriate burden of persuasion ) that the defendant did not temporarily possess the controlled substance solely for legal disposal, you should find [him][her] guilty, if all of the elements of the charge have been proven beyond a reasonable doubt. However, if you are not convinced (insert appropriate burden of persuasion ) that the defendant did not temporarily possess the controlled substance solely for legal disposal, you should find [him][her] not guilty.

Comment

See Ramsubhag v. State, 937 So.2d 1192 (Fla. 4th DCA 2006) and Stanton v. State, 746 So.2d 1229 (Fla. 3d DCA 1999).


This article was last updated on Tuesday, February 6, 2018.