If you own, manage, or work the counter at a smoke shop or convenience store in Florida, a product that sat legally on the shelf in September became a felony on October 1, 2026. As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and a former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys, I have seen how new drug laws are enforced in their first months: through undercover buys and store inspections, before most people know the law changed. Our attorneys work to resolve these cases early, often before a charge is filed.

This guide covers both halves of CS/SB 432 (chapter 2026-148, Laws of Florida): Meg’s Law on nitrous oxide and the new xylazine trafficking crime. It explains why the Legislature acted, what changed in committee, and how the charges are defended.

What Is Meg’s Law in Florida?

Meg’s Law is the nitrous oxide part of SB 432, codified at section 569.216, Florida Statutes. It provides that a dealer licensed or permitted under Florida’s tobacco and nicotine laws, or the dealer’s agent or employee, may not “possess, sell, possess with intent to sell, deliver, or give, directly or indirectly, nitrous oxide on or from the dealer’s licensed premises.” A violation is a third-degree felony, punishable by up to five years in prison and a $5,000 fine.

The law reaches three groups of people:

• Owners and licensees of businesses that hold a tobacco or nicotine dealer license or permit.
• Employees and agents, including clerks, managers, and delivery drivers. The statute names them directly, so an employee can be charged even if the owner set the store’s inventory.
• Convenience businesses as defined in section 812.171, such as gas station stores, which the statute expressly includes.

Two exceptions apply. Grocery stores and supermarkets licensed or permitted by the Florida Department of Agriculture and Consumer Services are exempt. And the law does not prohibit selling “a finished food product in which nitrous oxide is used solely as a propellant,” such as canned whipped cream. The Department of Business and Professional Regulation must also adopt rules to prevent nitrous oxide from being used to get intoxicated.

Who Was Meg, and Why Did Florida Pass This Law?

The law is named for Margaret “Meg” Caldwell, a 29-year-old Central Florida woman whose family says she was addicted to nitrous oxide. According to Spectrum News 13, she was found behind an Orlando tobacco shop in November 2024 after buying oversized canisters of the gas. Representative Rachel Plakon championed the measure in the House, and Meg’s sister Kathleen backed it publicly.

The Senate sponsor, Senator Clay Yarborough of Jacksonville, told WUSF that nitrous oxide “has legitimate culinary and medical uses” but that canisters were being marketed with bright packaging and flavoring. He said the nitrous oxide provision was added after talks with Senator Darryl Rouson of St. Petersburg.

National data supports the concern. A 2025 study by Andrew Yockey and Rachel Hoopsick, published in JAMA Network Open and summarized by the University of Mississippi, used CDC mortality data to find that U.S. deaths involving nitrous oxide rose from 23 in 2010 to 156 in 2023, a 578% increase. Florida’s medical examiners do not track nitrous oxide deaths separately, so no state-level count exists.

Was Nitrous Oxide Already Illegal in Florida?

Partly, and many people do not realize it. Under section 877.111, Florida Statutes, it has long been a crime to inhale nitrous oxide to get intoxicated, and it is a third-degree felony for “any person” to knowingly distribute, sell, purchase, transfer, or possess “more than 16 grams of nitrous oxide,” unless the use falls into a listed medical, food processing, or industrial category.

A single small whipped cream charger holds about 8 grams. The large flavored tanks sold in smoke shops hold far more than 16 grams, so a customer who buys one, and not just the seller, can be charged under section 877.111. The statute also says that using nitrous oxide to inflate a balloon creates an inference that the person knew it was for an unlawful purpose.

What Meg’s Law adds is a location-based ban. Under section 569.216, the State does not need to prove an amount over 16 grams or a purpose to intoxicate. Possession on a dealer’s licensed premises is enough.

What Is Xylazine, and What Did the Law Change?

Xylazine is a veterinary sedative that is increasingly mixed into illicit fentanyl, where it is often called “tranq.” It is not approved for people, and the FDA has warned that it is not known whether naloxone reverses its effects. Florida already lists xylazine in Schedule I under section 893.03(1)(c)37. SB 432 made three changes:

1. An exception for animal medicine. FDA-approved animal drug products containing xylazine are now excluded from Schedule I. Before the change, Florida’s Schedule I listing did not distinguish veterinary xylazine from street xylazine, a problem for veterinarians, horse owners, and farms.
2. A new trafficking crime. Trafficking in xylazine under section 893.135(1)(c)7. is a first-degree felony with mandatory minimum prison terms and fines tied to weight.
3. A candy-product offense. Xylazine was added to section 893.13(1)(i), which makes it a first-degree felony with a 3-year mandatory minimum to sell, manufacture, deliver, or possess with intent any of these drugs in a form that resembles candy, cereal, gummies, vitamins, a branded food product, or a cartoon character.

The fine amounts above come from the enacted statute. An earlier Senate staff analysis listed a $100,000 fine for the lowest tier, but the version the Legislature passed sets it at $50,000.

Xylazine is a real factor in Florida overdose deaths. The Florida Medical Examiners Commission’s 2024 Interim Drug Report, published by FDLE, found that xylazine caused 171 deaths in Florida in just the first six months of 2024, and was found in 236 deceased persons overall in that period.

How Did SB 432 Change in the Legislature?

The bill passed both chambers unanimously, but it looked different when it was filed. The original Senate bill would have placed 7-hydroxymitragynine, the concentrated kratom compound sold as “7-OH,” in Schedule I. Senator Yarborough removed that provision after negotiations with the House. Meg’s Law was added in the Senate Fiscal Policy Committee, and a floor amendment made further changes before the final Senate vote. The House companion on xylazine, HB 309, was laid on the table when SB 432 passed.

Vote tallies come from the official bill history. Governor DeSantis signed the bill on June 16, 2026. The Criminal Justice Impact Conference projected a “positive indeterminate” impact on prison beds, noting that the Department of Corrections recorded 1,159 new prison commitments for drug possession, sale, manufacture, delivery, or trafficking in fiscal year 2024-25, according to the Senate Fiscal Policy Committee analysis.

How Do You Fight a Xylazine Trafficking Charge in Florida?

Xylazine trafficking cases are built on weight, knowledge, and possession, and each can be challenged. Our Tampa drug crimes attorney team looks at these issues first:

1. The lab result. The State must prove the substance contains xylazine and that the mixture weighs at least 28 grams. Our attorneys review the lab’s methods, chain of custody, and whether packaging or cutting agents were weighed.
2. Knowledge of the substance. Many people who buy street fentanyl have no idea it contains xylazine. Under section 893.101, lack of knowledge of the illicit nature of a controlled substance is an affirmative defense that can be raised at trial.
3. Possession. Drugs found in a shared car or home require proof the person knew of the drugs and could control them. Constructive possession cases are often won on this element.
4. The veterinary exception. FDA-approved animal products are no longer Schedule I. Whether a product qualifies, and whether it was being used for an animal, can decide the case.
5. Overlapping charges. A fentanyl-xylazine mixture can support both fentanyl and xylazine charges. Whether the State can punish the same mixture twice is a double jeopardy question Florida’s appellate courts have not yet answered for xylazine, and our attorneys raise it.
6. The search. Trafficking weights are usually found in traffic stops and home searches. A successful motion to suppress removes the drugs from evidence entirely.

Mandatory minimums do not have to be the end of the story. Under section 893.135(4), the State may ask the court to reduce or suspend a trafficking sentence for a defendant who provides substantial assistance. Our guide to drug trafficking in Florida explains the weights and mandatory sentences for other drugs.

What Should Store Owners and Employees Do Now?

Remove nitrous oxide products from any licensed tobacco or nicotine premises now, and document that you did. The law took effect October 1, 2026, and an undercover purchase is the most common way new retail laws are enforced. Our attorneys recommend these steps:

• Pull all nitrous oxide chargers, tanks, and dispensers from the sales floor, storage rooms, and vehicles tied to the store.
• Keep a dated record of the removal, including invoices showing how the product was returned or disposed of.
• Tell every employee in writing that the store does not sell nitrous oxide, because employees face felony exposure personally.
• Do not transfer the inventory to another business you control; the law reaches possession “directly or indirectly.”
• If an inspector or officer visits, be polite, do not consent to anything beyond what the law requires, and call a lawyer.

If you learn your store or an employee is under investigation, representation before charges are filed gives our attorneys the chance to show the State Attorney’s Office that the business complied once the law took effect. Our guide on fighting a drug charge before it is filed explains that process.

This post is part of our guide to the new Florida criminal laws that took effect October 1, 2026, which summarizes all eight laws in one place.

Frequently Asked Questions

Can I still buy whipped cream chargers in Florida?

Yes, from businesses that are not licensed tobacco or nicotine dealers, such as grocery stores and kitchen suppliers, though possessing more than 16 grams for intoxication or without a lawful purpose can still be charged under section 877.111. The Brancato Law Firm reviews the amount, the purpose, and where the product was bought when advising clients charged with nitrous oxide possession.

Can a smoke shop clerk be charged under Meg’s Law?

Yes. Section 569.216 applies to a dealer’s “agent or employee,” so a clerk who sells or even possesses nitrous oxide on the licensed premises can face a third-degree felony. Our attorneys at The Brancato Law Firm look closely at whether the employee knew the product was nitrous oxide and what instructions the owner gave.

Is xylazine a controlled substance in Florida?

Yes. Xylazine is a Schedule I substance under section 893.03(1)(c)37., except FDA-approved animal drug products, which SB 432 removed from Schedule I. The Brancato Law Firm defends xylazine possession and sale cases in Hillsborough, Pinellas, and Pasco Counties through our drug crimes defense practice.

What is the penalty for trafficking xylazine in Florida?

Trafficking 28 grams or more of xylazine or a mixture containing it is a first-degree felony with a mandatory minimum of 3 years and a $50,000 fine, rising to 7 years at 100 grams and 25 years at 200 grams. Our attorneys at The Brancato Law Firm challenge the weight, the lab analysis, and possession in every trafficking case.

Does Meg’s Law apply to gas stations?

Yes. The statute expressly applies to a “convenience business” as defined in section 812.171, which includes most gas station stores, even if the business is not a typical smoke shop. The Brancato Law Firm advises owners on compliance and defends employees charged after undercover purchases.

Does the law apply to sales before October 1, 2026?

No. Section 569.216 and the xylazine trafficking provision apply only to conduct on or after October 1, 2026. Our attorneys at The Brancato Law Firm check the date of every alleged sale, because earlier conduct can only be charged under the laws in effect at the time.

Talk to a Tampa Drug Crimes Lawyer Today

For more about our defense strategies, visit our Drug Crimes practice page.

The earliest days of a drug investigation are when a charge can still be shaped or stopped. Our attorneys will review the arrest or inspection report, the lab work, and the search, and we will contact the prosecutor before the filing decision when that helps. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159. Call us at any hour; our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for criminal defense in Spanish and Haitian Creole in Tampa.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

If you were just arrested for drug possession in Hillsborough County, the most valuable weeks of your case are the ones before the State Attorney’s Office decides whether to file a charge. I am Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and a former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys. In more than 25 years in Hillsborough County courtrooms, I have watched DETRR and the programs before it turn possession arrests into closed cases, and our attorneys work to get eligible clients into the program before a charge is ever filed.

What is the DETRR program in Hillsborough County?

DETRR is a drug diversion program run by the Hillsborough County State Attorney’s Office in the 13th Judicial Circuit. The State Attorney’s Office describes it as “limited to drug possession cases for low-risk, non-violent offenders” and lists it among its diversion programs on its programs page. The program launched in October 2020 as a step below Drug Treatment Court, for people whose drug use does not call for the closer supervision of a treatment court.

The deal is simple. The person waives the right to a speedy trial in writing, completes whatever education or treatment the program assigns, and stays arrest-free for six months from the day they enter. If they do, the drug possession charge is dismissed. If they are arrested again, the State can go back to prosecuting the original charge. DETRR is a Hillsborough County program, so our Hillsborough County criminal defense attorneys handle it through the State Attorney’s Office in Tampa.

Who qualifies for DETRR?

DETRR has three levels, and the level depends on the drug, the amount, and the person’s history. According to the State Attorney’s Office DETRR information sheet for defense attorneys, each level can be used only once, and a later arrest moves a person up to the next level if they are otherwise eligible.

Level 1 reaches further than many people expect. Under section 893.13(6)(b), Florida Statutes, possession of 20 grams or less of cannabis is a first-degree misdemeanor, and more than that is a third-degree felony under section 893.13(6)(a). Because DETRR Level 1 goes up to 30 grams, it covers some felony cannabis cases as well as misdemeanors. Our post on how much marijuana is a felony in Florida explains those weight lines.

What disqualifies someone from DETRR?

Any sign of sale or distribution, any trafficking charge, and a violent or high-risk profile keep a person out of DETRR at every level. Pending charges and felony probation also matter. The table below sorts what the State Attorney’s Office lists as disqualifying from what it says does not, by itself, rule a person out.

Can DETRR happen before charges are filed?

Yes, if the defense reaches the State Attorney’s Office early enough. The State Attorney’s Office materials describe DETRR in terms of dismissing a charge, and some sources treat it as a program for cases that are already filed. In our experience, the Hillsborough State Attorney’s Office will also do diversion before filing: when the defense contacts the prosecutor quickly after the arrest, the person waives speedy trial, and the office holds off on filing the charge while the person completes the program.

That timing matters. A case that is never filed leaves no charging document at all, which is the cleanest result a person can get after an arrest. The speedy trial waiver is what makes it work: it gives the State the time to wait without losing the case. This is the core of our pre-file advocacy work, and it is why the first call after a drug arrest should come early, not after the State has already filed.

How often are Hillsborough drug possession cases never filed?

In 2025, the Hillsborough County State Attorney’s Office filed no charge in 62% of the 7,069 drug possession cases it decided, up from 27% in 2022, according to the Florida Department of Law Enforcement’s Criminal Justice Data Transparency database. Marijuana possession cases followed the same path: 51% of the 1,373 decided in 2025 were not filed. Those cases come out of a large pool. Hillsborough County recorded 10,502 drug arrests in 2025, according to FDLE arrest data published on the Florida Department of Health’s FLHealthCHARTS site.

The data does not say why a case was not filed, and pre-file diversion is only one reason. In our experience, prosecutors are also less interested in small amounts of marijuana than they were a few years ago, and roadside field tests often do not hold up once the crime lab looks at the evidence. Our post on how to fight a drug charge before it is filed covers the lab and field test issues. The point for anyone facing a possession arrest in Hillsborough is that a filed charge is far from certain, and early work by our attorneys can push a case toward the side that is never filed.

How do you get into DETRR?

Entry into DETRR runs through the prosecutor, not the judge. For Levels 1 and 2, the assistant state attorney in the felony division prepares the DETRR contract and sends it to the defense attorney for the client’s signature. For Level 3, the case goes to Drug Court for a risk-needs assessment, and the prosecutor assigned to Drug Court prepares the contract. After the case is closed into the program, the person takes the signed contract to the Florida Department of Corrections office at 1313 N. Tampa Street within 24 hours and is assigned an officer who tracks the six months.

1. Our attorneys confirm eligibility from the arrest report, the substance, the weight, and the client’s record.
2. We contact the assigned prosecutor, ideally before the filing decision, and ask for DETRR.
3. The client signs the contract and the written speedy trial waiver.
4. The client reports to the Department of Corrections within 24 hours and completes any required evaluation and treatment.
5. After six months with no new arrest, the charge is dismissed, or, in a pre-file case, never filed.

The prosecutor’s decision is final. In Cleveland v. State, 417 So. 2d 653 (Fla. 1982), a woman charged with welfare fraud met every statutory requirement for pretrial intervention, but the state attorney refused to consent, and the trial judge ordered her into the program anyway. The Fourth District Court of Appeal quashed that order, and the Florida Supreme Court approved the appellate decision, holding that “the pretrial diversion decision of the state attorney is prosecutorial in nature and, thus, is not subject to judicial review.” The lesson for DETRR is practical: a judge cannot force a prosecutor to offer diversion, so the case for DETRR has to be made to the prosecutor, and made well.

Does DETRR clear your record?

No, not by itself. Finishing DETRR ends the case, but the arrest stays on the person’s criminal history until it is expunged or sealed. The State Attorney’s Office says DETRR participants are offered information about expunction at every level.

DETRR sets a person up well for expunction. Under section 943.0585, Florida Statutes, a person may petition to expunge a record when no charging document was filed, or when the charge was dismissed or nolle prossed, so long as they have never been adjudicated guilty of a criminal offense in Florida and have never had a record sealed or expunged before. The person first applies to FDLE for a certificate of eligibility, which requires a certified statement from the State Attorney’s Office and a $75 processing fee, and the court still decides the petition. A pre-file DETRR case, where the charge is never filed, falls under the first category.

Does diversion actually work?

The research says yes. A National Institute of Justice study, NIJ’s Multisite Evaluation of Prosecutor-Led Diversion Programs (Rempel and others, 2018), compared five prosecutor-run diversion programs in Illinois, Wisconsin, and Vermont with similar cases that went through regular prosecution. Diversion participants were less likely to be convicted or jailed, four of the five programs were linked to lower re-arrest rates, and diversion cases cost less to handle in all four programs studied for cost. DETRR rests on the same idea: for low-risk possession cases, treatment and a clean six months do more good than a conviction.

What should you do after a drug possession arrest in Hillsborough County?

Act within days, not weeks. The pre-file window is when DETRR can keep a charge from ever being filed, and the State Attorney’s Office can file at any time. Do not discuss the case with police or post about it, keep every paper the jail gave you, and do not pick up a new charge, since a pending case can disqualify you. Then call a lawyer who knows how the Hillsborough State Attorney’s Office handles diversion. For more about our defense strategies, visit our Drug Crimes page.

For how this fits into the rest of a case, see our overview of how a Florida criminal case moves from investigation to appeal.

Frequently asked questions about DETRR

Can a judge order DETRR if the prosecutor says no?

No. Under Cleveland v. State, 417 So. 2d 653 (Fla. 1982), a state attorney’s decision on pretrial diversion is not subject to judicial review. That is why our attorneys at The Brancato Law Firm make the case for DETRR directly to the assigned prosecutor, with the facts and records that show the client is low-risk.

Can I get DETRR if I have a prior record?

Often, yes. A prior record does not by itself exclude someone from Level 1 or Level 3, though Level 2 is limited to people with no prior felony conviction or withhold. The Brancato Law Firm reviews the full record before contacting the prosecutor so the request goes in at the right level, and our Tampa drug crimes attorney page explains our wider approach to possession cases.

Is DETRR available in Pinellas or Pasco County?

No. DETRR is a program of the Hillsborough County State Attorney’s Office, and Pinellas and Pasco cases are handled by the State Attorney’s Office for the Sixth Judicial Circuit, which runs its own diversion options. Our attorneys at The Brancato Law Firm handle drug cases in all three counties and know which options each office offers.

What happens if I am arrested again during DETRR?

A new arrest can end the diversion and send the original case back to regular prosecution. The Brancato Law Firm treats that risk seriously from day one, which is why we walk every DETRR client through the six-month terms before they sign.

Does DETRR require a guilty plea?

No. DETRR does not require a guilty or no contest plea. The person signs a contract and a written speedy trial waiver, and after six months arrest-free the charge is dismissed or, in a pre-file case, never filed. Our attorneys at The Brancato Law Firm review every DETRR contract with the client before signing, and in a pre-file case the goal is a charge that is dropped or never filed.

The days right after a drug arrest decide whether DETRR can keep a charge from ever being filed. Our attorneys will review the arrest report, confirm which DETRR level fits, and contact the prosecutor before the filing decision. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159. Call us at any hour; our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish-speaking and Haitian Creole-speaking clients.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

A Hillsborough County prosecutor deciding whether to file a drug charge looks at two things first: what the lab says the substance is, and how the police found it. I am Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and a former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys. In more than 25 years in Hillsborough County courtrooms, I have watched the filing decision shape drug cases long before any trial date is set. Our attorneys use that window to put the weaknesses in the State’s evidence in front of the prosecutor before a charge is ever filed. Our drug case results include a fentanyl trafficking case dismissed three weeks after the arrest and a not guilty verdict in a 200-to-400-gram cocaine trafficking trial.

This guide explains what happens between a drug arrest and a formal charge in Florida, the court rule deadlines that changed in July 2025, and the five places where drug evidence most often breaks down. If you are facing a drug case now, our Tampa drug crimes attorney page explains how our firm defends these charges.

What happens after a drug arrest in Florida before charges are filed?

After a drug arrest in Florida, the arrest report and the seized evidence go to the State Attorney’s Office, and an assistant state attorney decides whether to file formal charges. The arrest itself is not the charge. The formal charge in a felony drug case is an “information” filed by the prosecutor, and until it is filed, the case sits in what lawyers call the pre-file stage. In the 13th Judicial Circuit, that is where our representation before charges are filed does its most useful work.

During the pre-file stage, three things usually happen at once. The suspected drugs are sent to a crime lab for chemical testing. The prosecutor reviews the arrest report, any body camera video, and the search. And the defense, if one is involved yet, gathers its own evidence and asks the prosecutor to file nothing, file less, or offer diversion.

Florida’s court rules put a clock on this stage. Under Florida Rule of Criminal Procedure 3.134, as amended in In re Amendments to Florida Rule of Criminal Procedure 3.191, 411 So. 3d 385 (Fla. 2025), a Florida Supreme Court rules opinion that took effect July 1, 2025, the State must formally charge a jailed defendant within 30 days and a defendant out on bond within 60 days. Missing those deadlines leads to release from jail or from bond conditions. It does not lead to dismissal.

The 2025 amendments also changed Florida’s speedy trial rule. The Florida Supreme Court explained that the speedy trial period “now starts from the date that formal charges are filed rather than from the date of arrest.” The practical effect is that the State faces no speedy trial pressure while it waits for a lab report, so the pre-file stage can run for months when the defendant is not in custody. That is time the defense can use.

How common are drug arrests in Hillsborough, Pinellas, and Pasco Counties?

In 2025, Hillsborough County recorded 10,502 drug arrests, a rate of 666.5 per 100,000 residents, compared with 383.1 per 100,000 statewide, according to Florida Department of Law Enforcement arrest data published on the Florida Department of Health’s FLHealthCHARTS site. That puts Hillsborough’s drug arrest rate about 74 percent above the state average. Pinellas County recorded 5,269 drug arrests in 2025 and Pasco County recorded 1,817.

Together, the three Tampa Bay counties our firm serves accounted for 17,588 of Florida’s 89,562 drug arrests in 2025, or about one in five. Each of those arrests goes through the same filing decision described above. FDLE notes that its figures count arrest events and that one arrest can include several charges. Our attorneys handle drug cases in Hillsborough County, Pinellas County, and Pasco County, and the filing practices of each State Attorney’s Office differ.

Is a roadside field test enough to prove a drug charge in Florida?

No. A roadside field test is a presumptive screen that tells an officer a substance might be a drug. It is a color-change kit, and it can react to legal substances. Florida appellate courts have held that a field test alone did not prove what a package contained, which is why the crime lab report carries so much weight in the filing decision.

A 2024 report by the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Carey Law School estimated that about 773,000 drug arrests in the United States each year involve these presumptive field tests. The same report estimated that around 30,000 arrests each year involve people who did not possess any illegal substance, and it noted that the true error rate of the tests remains unknown. Our firm treats a positive field test as a claim the lab still has to confirm.

Tampa Bay has its own record with these kits. A 2016 investigation by ProPublica and the Tampa Bay Times found that over the first several months of 2014, the Hillsborough County Sheriff’s Office arrested 15 people on drug charges for substances the Florida state crime lab later determined were not drugs. Other Florida cases reported in the news follow the same pattern: a roadside color change, an arrest, and a lab result that came too late to prevent it.

The Martinez case was reported by ProPublica and the Tampa Bay Times, the Shaw case by FOX 13 Tampa Bay, and the Rushing case by CBS News. Each of them was cleared by a lab, but only after an arrest. That is why our attorneys push for the lab result before the State makes its filing decision, and why we challenge any case that rests on a field test alone.

Florida’s Second District Court of Appeal, which hears appeals from Tampa Bay, applied that principle in Smith v. State, 835 So. 2d 387 (Fla. 2d DCA 2003). An officer field-tested two baggies of suspected methamphetamine, then poured them into one bag without weighing either one. The court held that “the field test alone does not make a prima facie case” for trafficking and reduced the conviction to armed possession. The lesson carries forward: when the only proof of what was in a package is a field test, the State has a gap.

Where does the lab evidence in a Florida drug case break down?

Drug evidence in a Florida case usually breaks down in one of five places: the field test, the lab’s testing choices, the weight, the chain of custody, or the analyst who testifies. Our attorneys review each one before we talk to the prosecutor, because a weakness found before filing can change what charge, if any, the State files.

1. The lab tested a sample, not every package

When the total weight of several packages matters, Florida courts have required the State to test each package rather than infer the contents from one. In Campbell v. State, 407 So. 3d 558 (Fla. 2d DCA 2025), a Hillsborough County case, detectives found 50 vacuum-sealed bundles of a green, leafy substance, but the FDLE lab tested only one sample, which weighed 24.47 grams. Every State witness admitted they could not tell legal hemp from illegal cannabis by appearance or smell. The Second District reversed the trafficking conviction and ordered it reduced to felony possession of cannabis, holding that the State “must chemically test each packet” when it relies on multiple packages to reach a trafficking weight.

2. Hemp and marijuana look and smell the same

Since hemp became legal, Florida courts recognize that hemp and marijuana cannot be told apart without testing. The Campbell court explained that a substance with a THC concentration above 0.3% is illegal cannabis, and one below 0.3% is legal hemp. That makes the lab’s THC result central in any marijuana or THC case, including vape and edible cases. Our post on how much weed is a felony in Florida explains the weight thresholds that follow from that result.

3. The weight includes the wrong things

Drug charges in Florida climb with weight, and trafficking under section 893.135, Florida Statutes carries mandatory minimum prison sentences. When officers combine packages before weighing them, weigh drugs in their packaging, or estimate pill counts, the weight that drives the charge may not be the weight of the drug. In Smith, combining two baggies before weighing them cost the State its trafficking conviction. Our post on fentanyl trafficking defenses covers how weight issues play out in the most serious cases.

4. The chain of custody has a gap

Florida admits physical evidence unless there is evidence of probable tampering. In Murray v. State, 3 So. 3d 1108 (Fla. 2009), a murder case involving hair evidence, the Florida Supreme Court held that once the defense produces evidence of probable tampering, the burden shifts to the State to establish a proper chain of custody. In drug cases, our attorneys compare the evidence log, the lab intake form, and the weights recorded at each step. A package that gains or loses weight, or changes description, between the scene and the lab is the kind of discrepancy that meets that burden.

5. The analyst who did the testing does not testify

A defendant has the right to confront the lab analyst whose testimonial findings are used against him. In Smith v. Arizona, 602 U.S. 779 (2024), the State of Arizona replaced the analyst who tested the drugs with a substitute expert who relayed her notes and report to the jury. The U.S. Supreme Court held that when an expert relays an absent analyst’s statements to support his opinion, those statements come in for their truth, and if they are testimonial, the defendant has the right to cross-examine the person who did the lab work. The Court sent the case back to decide whether the absent analyst’s statements were testimonial. When analysts leave crime labs or cases are reassigned, that ruling gives the defense real leverage.

Two more issues sit alongside the lab evidence. The first is how the drugs were found: an illegal stop or search can lead to a motion to suppress that keeps the drugs out of evidence, and our posts on drugs thrown down during a police encounter and confidential informants cover two common search issues. The second is knowledge. Under section 893.101, Florida Statutes, lack of knowledge of the illicit nature of a substance is an affirmative defense, and drugs found in a shared car or home raise the constructive possession questions the State must answer. If the lab identifies a different drug than the one charged, our post on being charged with the wrong drug explains what follows.

What can a defense lawyer do before drug charges are filed in Tampa?

Before charges are filed, a defense lawyer can give the prosecutor reasons not to file, to file less, or to offer diversion, while the prosecutor still has full discretion. Once an information is filed, every change has to be negotiated. In our firm’s pre-file drug work, the steps usually look like this:

• Find the weak points first. We review the arrest report, body camera video, and property receipts for the five evidence problems above.
• Document lawful explanations. A valid prescription is a complete answer to many possession charges under section 893.13(6)(a), Florida Statutes, and a receipt for a lawful hemp product can matter in a THC case.
• Press the timeline. We track when the evidence was submitted to the lab and hold the State to the Rule 3.134 deadlines.
• Present mitigation. Employment, school, treatment, and a clean record give the prosecutor a reason to choose diversion over a felony filing.
• Ask for a specific outcome. We ask for a no information, a misdemeanor instead of a felony, or entry into a pretrial program, depending on what the evidence supports.

Speed matters at this stage. In a January 2025 case, a client was arrested for possession of cocaine and possession of a firearm during the commission of a felony. Rocky argued at first appearance that the facts did not meet the intent of the firearm statute, the judge set low bonds, and his immediate work with the intake prosecutor led to both charges being dismissed within days of the arrest. In a March 2025 fentanyl trafficking case, Rocky defeated the State’s motion for pretrial detention, challenged constructive possession and the vehicle search, and the prosecutor issued a Letter of Release within three weeks of the arrest.

Arrests at the Port Tampa Bay cruise terminals show how this works in practice. In March 2026, a husband and wife who flew to Tampa for a cruise were arrested after the cruise line’s security screening found felony amounts of marijuana in their shared luggage, including vape cartridges, flower, and edibles. Before the State made its filing decision, Rocky presented the facts to the State Attorney’s Office and argued constructive possession: neither spouse could be individually linked to drugs in shared luggage. The State never filed charges against either one. Our post on cruise ship arrests in Tampa covers those cases in more detail.

Can drug charges be dropped in Florida?

Yes. Florida drug charges can be dropped before filing through a no information, or dismissed after filing through a pretrial intervention program. Under section 948.08(6), Florida Statutes, a person charged with a nonviolent felony who has a substance abuse problem and no more than two prior nonviolent felony convictions is eligible for a pretrial drug treatment program, and “the court shall dismiss the charges” on successful completion. Admission is not automatic, and the State can oppose it in some cases.

In Hillsborough County, the 13th Judicial Circuit’s Administrative Order S-2026-002, effective February 2, 2026, governs Adult Drug Treatment Court. Its pretrial program does not require a guilty or no contest plea, and successful completion results in dismissal. The defendant must waive speedy trial for the diversion period. The circuit’s post-adjudicatory drug court is different: it requires a plea and is limited to nonviolent felonies scoring 60 points or fewer on the Criminal Punishment Code scoresheet.

Diversion is often the result of pressure on the evidence. In an August 2025 amphetamine trafficking case, Rocky filed a motion to suppress that exposed serious weaknesses in the State’s case. The trafficking charge was reduced, and the client was accepted into a diversion program under which the case will be dismissed once he completes a drug evaluation and any recommended outpatient treatment. In an October 2026 case, a young man charged with multiple counts of possessing party drugs and pills completed a diversion program Rocky negotiated, the charges were dismissed, and he is now eligible to have his record expunged.

Possession of most controlled substances under section 893.13(6)(a) is a third-degree felony, punishable by up to 5 years in prison and a $5,000 fine. Possession of 20 grams or less of cannabis is a first-degree misdemeanor, punishable by up to 1 year in jail and a $1,000 fine. Those exposures are why the filing decision matters so much: the difference between a felony information and a no information is the difference between a felony record and none.

How often are drug possession arrests in Tampa Bay never filed?

In Hillsborough County, the share of drug possession cases the State Attorney’s Office never filed more than doubled in four years, from 27% of the 3,280 cases it decided in 2022 to 62% of the 7,069 cases it decided in 2025. Marijuana possession followed the same path in Hillsborough, rising from 27% not filed in 2022 to 51% in 2025. Pinellas County held steady: the State Attorney’s Office there filed no charge in 20% of the 3,163 drug possession cases it decided in 2025, about the same share as in 2023 and 2024. Pasco County’s reported data covers only 2022 and 2023 and a small share of cases, but in that sample 6% of 436 drug possession cases were not filed. These figures come from the Florida Department of Law Enforcement’s Criminal Justice Data Transparency database, which collects the filing decisions each State Attorney’s Office reports under section 900.05, Florida Statutes.

In our experience at The Brancato Law Firm, P.A., three things drive Hillsborough’s rise. Prosecutors are less interested in small amounts of marijuana than they were a few years ago. Pre-file diversion programs give people with low-level possession cases a way to avoid a filed charge, and in Hillsborough the State Attorney’s Office will hold off on filing while a person completes diversion if the defense reaches the prosecutor quickly enough. And roadside field reagent tests are unreliable, as explained above, so a case that rests on a field test often does not hold up once the lab looks at the evidence. Filing practices differ by county, which is why representation before charges are filed starts with knowing how the State Attorney’s Office in that county handles these cases.

About these numbers: Each case is counted once. A case counts as “not filed” when the State Attorney filed no charge in it. Cases consolidated into another case or transferred to another court are excluded. “Drug possession” here means possession of a controlled substance other than marijuana.

What should you do if you are arrested or under investigation for drugs in Tampa?

Talk to a defense lawyer before the State files charges, because Florida’s court rules expect a filing decision within 30 days for a jailed defendant and 60 days for one on bond, and the lab result can arrive sooner. Until then, protect the case:

• Do not explain, discuss, or text about the drugs, the car, or the house with anyone, including family. Jail calls are recorded.
• Do not talk to detectives or agree to a “just to clear things up” interview without a lawyer.
• Keep prescriptions, pharmacy records, and receipts for any lawful hemp or CBD products.
• Write down who had access to the car, room, or bag where the drugs were found.
• Save the property receipt and bond paperwork. The dates on them help track the Rule 3.134 deadlines.

If detectives contact you before any arrest, the same rules apply. Our pre-file advocacy page explains how our firm handles investigations before charges.

What results has our firm gotten in Tampa drug cases?

Our attorneys have won drug cases at every stage: before charges were filed, through motions to suppress and diversion, and in front of juries. The results below are drawn from our firm’s published case results and include trafficking dismissals, not guilty verdicts, and reductions that kept clients out of prison.

Past results do not guarantee future outcomes. Each result depended on its own facts. You can read the full story behind each one on our case results page.

Frequently asked questions

How long does the State have to file drug charges in Florida?

The State must file formal charges within 30 days if you are in jail and within 60 days if you are out on bond, under Florida Rule of Criminal Procedure 3.134. The Brancato Law Firm tracks those dates from the day of arrest and moves for release the day a deadline passes. Missing the deadline leads to release, and the State can still file later. Our representation before charges are filed page explains that work.

Can a drug lab backlog delay my release from jail in Florida?

Yes, sometimes, because a lab backlog can count as good cause to hold a defendant until day 40. At every Rule 3.134 hearing, our attorneys at The Brancato Law Firm press the State for the date it actually submitted the drugs to the lab. In Roberson v. Reyes, 390 So. 3d 669 (Fla. 3d DCA 2023), a Miami-Dade case involving suspected MDMA and oxycodone, the court said a lab backlog “may constitute good cause” but warned that a generic claim of lab delay may not be enough when the State waited almost two weeks to submit the drugs.

Can I be convicted in Florida if only a field test was done?

A field test alone is weak proof of what a substance is, and Florida appellate courts have reversed convictions that depended on one. When the State’s case rests on a field test, The Brancato Law Firm raises it with the prosecutor before filing and, if needed, at trial. In Smith v. State, the Second District held that a field test alone did not prove the contents of baggies the officer combined before weighing. Our drug crimes defense page explains how we defend these cases.

What can cause a false positive on a police drug field test?

Legal substances can trigger the same color change as an illegal drug, and in Florida, reported false positives include doughnut glaze, vitamins, and penicillin for chickens. The Brancato Law Firm treats any arrest based on a field test as unconfirmed until the crime lab reports, and we raise that gap with the prosecutor before charges are filed. Our pre-file defense page explains how we use that window.

Does the lab analyst have to testify at my Florida drug trial?

Often yes, because under Smith v. Arizona a substitute expert cannot simply relay an absent analyst’s testimonial statements to support his own opinion. Our trial attorneys at The Brancato Law Firm check early whether the analyst who did the testing is still available, since the answer can change how the State proves its case.

Do I have to plead guilty to enter drug court in Hillsborough County?

No, not for the pretrial program, which under the 13th Judicial Circuit’s Administrative Order S-2026-002 requires no plea and ends in dismissal on successful completion. The Brancato Law Firm evaluates whether a client qualifies under section 948.08(6) and argues for admission when the State resists.

Can drug charges be dropped in Florida if the drugs were not mine?

Yes, because the State must prove you knowingly possessed the drugs, and drugs found in a shared space raise constructive possession questions the State often cannot answer. Our attorneys at The Brancato Law Firm present those facts to the prosecutor before filing, when a no information is still on the table, and at trial our firm won a not guilty verdict for a client accused of trafficking 200 to 400 grams of cocaine by showing he was merely present. Florida also treats lack of knowledge of a substance’s illicit nature as an affirmative defense under section 893.101.

For more about our defense strategies, visit our Drug Crimes page.

Florida’s court rules give the State 30 days to charge a jailed defendant and 60 days to charge one on bond, and the lab result that drives that decision can arrive sooner. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159. Our attorneys will review the arrest report and the evidence and contact the prosecutor before charges are filed. You can call us at any hour, and our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish-speaking criminal defense clients in Tampa.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

If your husband, wife, or child was just walked off a cruise ship at Port Tampa Bay, the next 24 hours shape the whole case. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and a former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys. I have spent more than 25 years in Hillsborough County courtrooms. Our attorneys take these calls while the ship is still at the dock, and we can be mobilized and ready for your loved one’s first appearance.

Why do people get arrested at the Tampa cruise terminals?

People get arrested at the Tampa cruise terminals because every bag is screened before boarding, and law enforcement officers work the terminals on cruise days. In 2025, Port Tampa Bay welcomed 1.66 million cruise passengers, the highest total in its history, according to Port Tampa Bay. The port says it is tracking toward 1.8 million passengers in 2026. More passengers means more luggage screened and more arrests.

In the cruise terminal cases our firm has handled, the arrest is made by an off-duty Hillsborough County Sheriff’s Office deputy working a paid detail at the terminal. Private security screens the luggage, flags a bag, and calls the deputy. The cruise terminals sit inside Tampa city limits, so a Tampa Police officer can make the same arrest. Either way, the case goes to the Hillsborough County State Attorney’s Office and the Hillsborough County criminal courts in the 13th Judicial Circuit.

Passengers are often already in their cabin when the bag is flagged. Ship security finds them on board, walks them off the ship, and turns them over to the deputy at the terminal.

Can you bring marijuana, CBD, or hemp on a cruise from Tampa?

No. Cruise lines ban marijuana on board, and the published policies of Carnival and Norwegian also ban CBD and THC products, including products sold as medical marijuana. A product that is legal at a Florida smoke shop can still get you removed from the ship and arrested at the terminal.

A Florida medical marijuana card does not change this. Florida’s medical marijuana law, section 381.986, Florida Statutes, excludes use or administration of marijuana “on any form of public transportation” from protected medical use, except for low-THC cannabis not in a form for smoking. Federal law does not recognize state medical marijuana programs at all. Our post on how to legally transport medical marijuana in Florida covers the rules on land.

Is hemp legal on a cruise ship?

Hemp is legal under Florida law, but that does not protect you on a cruise. Florida defines hemp in section 581.217, Florida Statutes as cannabis with a total delta-9 THC concentration that does not exceed 0.3 percent on a dry-weight basis. Florida’s drug statute, section 893.02, Florida Statutes, excludes that hemp from the definition of cannabis. The problem is proof. A deputy at the terminal cannot tell a lawful hemp gummy from a marijuana gummy by looking at it, so the passenger gets arrested and the lab sorts it out later.

Federal hemp law is also changing. Congress rewrote the federal definition of hemp in Public Law 119-37, enacted November 12, 2025, according to the Congressional Research Service. Under the new definition, final hemp-derived cannabinoid products with more than 0.4 milligrams of total THC per container are no longer hemp under federal law. Congress delayed that change to December 11, 2026, in H.R. 6500, signed September 2, 2026. Unless Congress acts again, intoxicating hemp gummies, drinks, and vapes over that limit will be treated as marijuana, a Schedule I controlled substance, under federal law. That matters when a ship returns to Tampa from a foreign port and passes through U.S. Customs.

Will a cruise ship arrest be in state court or federal court?

Where the case lands depends on where the drugs were found and who found them. Drugs found at the terminal before the ship sails are almost always a Hillsborough County state case. Drugs found by U.S. Customs and Border Protection when the ship returns from Mexico, Honduras, or the Bahamas can become a federal case, a federal civil penalty, or a state case referred to local deputies. Crimes committed against another person at sea are usually investigated by the FBI.

Federal jurisdiction over crimes at sea is broad. Under 18 U.S.C. § 7(8), the special maritime jurisdiction of the United States reaches any foreign vessel “during a voyage having a scheduled departure from or arrival in the United States” for offenses committed by or against a U.S. national, to the extent international law allows. Florida has its own special maritime jurisdiction statute, section 910.006, Florida Statutes, which covers acts against people and property aboard ships on voyages where over half of the passengers embarked and plan to disembark in Florida.

Cruise lines must report serious crimes to the FBI under the Cruise Vessel Security and Safety Act. In 2025, cruise lines reported 182 alleged crimes to the FBI across the four quarterly reports published by the U.S. Department of Transportation. Those reports cover assaults, sexual assaults, thefts over $10,000, and missing persons. They do not count drug offenses.

When a cruise ship case is charged federally in Tampa, the first court date is an initial appearance before a federal magistrate judge, and the charges come from federal statutes, not Florida’s. Our firm’s practice is Florida state court in Hillsborough, Pinellas, and Pasco Counties, where arrests made at the terminal before the ship sails are prosecuted.

What are the penalties for marijuana or THC found on a cruise ship?

In Florida, possession of 20 grams or less of cannabis flower is a first-degree misdemeanor, and possession of more than 20 grams is a third-degree felony under section 893.13, Florida Statutes. The 20-gram misdemeanor exception does not apply to resin or any “derivative, mixture, or preparation of such resin.” That means THC gummies, vape cartridges, and wax are charged as felonies in Florida regardless of weight, unless they qualify as lawful hemp.

Under federal law, simple possession under 21 U.S.C. § 844 carries up to one year in prison and a minimum $1,000 fine for a first offense. Bringing or possessing a Schedule I drug such as marijuana on board a vessel arriving in or departing from the United States is a separate federal crime under 21 U.S.C. § 955. For less than 50 kilograms of marijuana, 21 U.S.C. § 960 sends sentencing to 21 U.S.C. § 841(b)(1)(D), which allows up to five years. For small personal-use amounts, federal authorities can instead impose a civil penalty of up to $10,000 under 21 U.S.C. § 844a, which is not available to anyone with a prior drug conviction.

Our attorneys handle these cases through our Tampa drug crimes attorney practice, and the first question we ask is what exactly the officers found and how they tested it.

Can cruise security or customs search your cabin without a warrant?

Yes, in most situations. Two different rules apply depending on who does the searching and when.

Cruise line security is private. The Fourth Amendment limits government searches, and a search by the cruise line’s own security acting on its own generally falls outside it. Cruise ticket contracts typically give the cruise line the right to search cabins and luggage. Federal law adds a second layer. A House committee report on the Cruise Vessel Security and Safety Act noted that “American citizens who travel on cruise ships are subject to the laws of the vessel’s flag state,” which “may not afford them the same rights and protections” as U.S. law, per House Report 111-332.

Customs officers can search at the border without a warrant. In United States v. Hill, 939 F.2d 934 (11th Cir. 1991), customs agents watching a cruise ship at Port Everglades stopped a crew member’s ride inside the port and found cocaine after a dog alert. The Eleventh Circuit held that the port was the functional equivalent of the border, so no suspicion was required, and reversed the order suppressing the cocaine. In United States v. Alfaro-Moncada, 607 F.3d 720 (11th Cir. 2010), the same court upheld a suspicionless search of a crew member’s cabin on a foreign cargo ship docked in Miami.

A passenger’s cabin may deserve more protection. In United States v. Whitted, 541 F.3d 480 (3d Cir. 2008), customs officers searched a passenger’s stateroom when the Adventure of the Seas docked in St. Thomas. The Third Circuit held that searching a passenger’s private cabin at the border is a “nonroutine border search” that requires reasonable suspicion, though it found that suspicion existed and upheld the search. Florida is in the Eleventh Circuit, not the Third, and Alfaro-Moncada involved a crew cabin on a cargo ship. That difference gives the defense room to argue when customs searches a paying passenger’s stateroom.

Your phone is also open to inspection at the border. In United States v. Touset, 890 F.3d 1227 (11th Cir. 2018), the Eleventh Circuit held that “no suspicion is necessary to search electronic devices at the border,” including forensic searches. Texts about buying or packing marijuana can become evidence.

A lawful search does not end the case. The State still has to prove the substance is illegal and that you knowingly possessed it. Statements are a separate issue too: if deputies questioned you without proper Miranda warnings, our attorneys can file a motion to suppress those statements even when the search itself holds up.

What should you do if you are detained on the cruise ship?

Stay calm, identify yourself, and stop talking about the bag. Many cruise terminal drug cases are built on what the passenger says in the first ten minutes. In a 2026 cruise terminal case our firm handled, where prosecutors ultimately filed no charges, the arrest affidavit relied on the husband’s and wife’s statements, made after Miranda warnings, that they both owned and possessed everything in the bag.

1. Cooperate physically. Go with ship security when asked. Do not argue, resist, or try to stay on board.
2. Give your name and identification. You must identify yourself. You do not have to explain what is in the bag.
3. Ask for a lawyer and stop answering questions. Say, “I want to speak with a lawyer, and I am not answering questions.” Then stop. This applies to ship security, deputies, and customs officers.
4. Do not consent to more searches. If asked for permission to search your cabin, other bags, your car, or your phone, say no. Officers may search anyway, but your refusal preserves the issue for your lawyer.
5. Do not take the blame for someone else. Couples and friends often try to protect each other by claiming everything. That statement can convict you, and it rarely helps the other person.
6. Do not get rid of anything. Flushing a vape or tossing a bag overboard can create a new charge.
7. Do not sign a written statement. Politely decline to write or sign anything about the drugs until you have spoken with a lawyer.
8. Get a message to family. Before your phone is taken, text one person the ship name, the terminal number, and the words “arrested, call a lawyer.”

What should your family do while you are still on the ship?

Your family should call a criminal defense attorney right away, while you are still on the ship or at the terminal. The early hours matter because our attorneys can start preparing for first appearance, track where you are being booked, and make sure you do not talk to anyone about the case on a recorded jail phone.

Have your family gather this information before they call:

• Your full legal name and date of birth
• The cruise line, ship name, and terminal number (Port Tampa Bay runs several terminals off Channelside Drive)
• The sail date and your home state
• The arresting agency, if known (HCSO or Tampa Police)
• What was found, if you were able to say
• Any medical marijuana card, hemp product receipts, or certificates of analysis

Once you are booked, your family can find you through the Hillsborough County jail inmate search and follow our step-by-step Hillsborough County bond walkthrough. Many cruise passengers are visiting from other states or countries. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French, so family members can explain the situation in their own language.

What happens at first appearance after a cruise terminal arrest?

Every arrested person must be taken before a judge within 24 hours of arrest under Florida Rule of Criminal Procedure 3.130. In Hillsborough County, cruise terminal arrests are booked into the Orient Road Jail, and the first appearance judge decides bond and release conditions. If you have hired a lawyer, the rule requires the judge to give a reasonable time to send for counsel, which is one reason to call us before the hearing.

For cruise passengers, first appearance decides practical questions fast. Can an out-of-state passenger go home? What bond is fair for someone with no Florida ties? Will the judge order drug testing or other conditions that are hard to meet from another state? Our attorneys come to first appearance ready to answer those questions with facts: home address, employment, family, and the travel plans that were interrupted. Our guide on what to do after being arrested in Tampa explains the rest of the early process.

If a passenger was released at the terminal without an arrest and the deputy said the report would be sent to the State Attorney, you may not have a court date yet. That is the time for representation before charges are filed, when our attorneys can present lab questions and mitigation to the prosecutor before a charging decision is made.

How do our attorneys fight cruise ship drug charges?

Our attorneys attack cruise ship drug cases at five points: the testing, the possession, the statements, the search, and the classification of the charge.

1. The testing. Field tests used at the terminals detect cannabinoids. They do not measure delta-9 THC concentration, which is what separates legal hemp from illegal cannabis under Florida law. In our 2026 cruise terminal case, the deputy’s field test reported THC gummies, joints, and flower as “synthetic cannabinoids.” We demand a laboratory analysis that actually quantifies THC before any plea is discussed.
2. The possession. Shared luggage and shared cabins create real questions about who owned what. The State must prove each person knew about the drugs and had control over them.
3. The statements. We review when Miranda warnings were given, who asked the questions, and whether ship security questioned the passenger first.
4. The search. We identify who searched, when, and under what authority: private screeners, ship security, a deputy, or customs. Each has different rules.
5. The classification. A felony charge for THC edibles or vapes depends on the product not qualifying as hemp. Flower under 20 grams is a misdemeanor. Getting the weight and the product type right can change the entire case.

For first-time offenders, pretrial diversion may also be available, which can lead to a dismissal after the program is completed. For more about our defense strategies, visit our Drug Crimes page.

Case result

Past results do not guarantee future outcomes.

How fast do you need to act after a cruise ship arrest?

Act within hours, not days. The table below shows the timeline our attorneys work against in a typical terminal arrest in Hillsborough County.

Frequently asked questions

Can you bring CBD gummies on a cruise leaving Tampa?

No, because major cruise lines, including Carnival and Norwegian, list CBD and THC products as prohibited items even when they are legal in Florida. The Brancato Law Firm defends passengers whose hemp or CBD products were flagged at the terminal, starting with whether the product actually exceeds Florida’s 0.3 percent delta-9 THC limit under section 581.217, Florida Statutes.

Does a Florida medical marijuana card protect you on a cruise ship?

No, because Florida’s medical marijuana law does not protect use on public transportation, cruise lines ban medical marijuana, and federal law does not recognize state medical cards. Our attorneys at The Brancato Law Firm still use a valid card, and the dispensary records behind it, as mitigation when a card holder is charged at the terminal.

What happens if customs finds marijuana when a cruise returns to Tampa?

U.S. Customs and Border Protection can seize the marijuana and refer the case for federal prosecution, impose a federal civil penalty of up to $10,000, or turn the passenger over to local law enforcement. The Brancato Law Firm handles the cases that are referred to Hillsborough County state court and can explain the options when customs is involved.

Can cruise ship security search my cabin without a warrant?

Yes, in most cases, because cruise line security is private, ticket contracts typically allow searches, and customs officers can search at the border without a warrant. When a deputy or customs officer goes beyond those limits, The Brancato Law Firm challenges the search in a motion to suppress.

Can marijuana charges from a Tampa cruise terminal be dropped?

Yes, prosecutors can drop or dismiss cruise terminal drug charges when the lab cannot prove the substance is illegal, when possession of shared luggage cannot be proven, or when key statements are suppressed. The Brancato Law Firm represented a husband and wife arrested on felony possession charges at a Port Tampa Bay terminal in 2026, and the State Attorney’s Office filed no charges against either one. Our Tampa drug crimes defense lawyer page explains how we build these cases.

Do I have to come back to Florida for court after a cruise terminal arrest?

It depends on the charge and the judge, since some court dates can be handled through your attorney while others require you to appear in person or by video. The Brancato Law Firm asks the court at first appearance to let out-of-state clients go home and to handle as much of the case through counsel as the court allows.

For a look at how jurisdiction works when something happens at sea, see our analysis of which laws applied in the Disney cruise overboard incident.

For how this fits into the rest of a case, see our step-by-step guide to what happens in a Florida criminal case.

Arrested at a Tampa cruise terminal? Call before first appearance

The best time to call is while your loved one is still at the terminal or being booked, before first appearance. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, defends cruise passengers charged in Hillsborough County, and we can be mobilized and ready for first appearance. Call (813) 727-7159. You can call us at any hour, and our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

If officers found marijuana in your car, your bag, or your apartment, the charge on your paperwork turns on details most people never think about: the weight, whether it was flower or concentrate, and whether a lab ever proved it was marijuana and not hemp. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and a former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys. Our attorneys defend marijuana and THC cases across Hillsborough, Pinellas, and Pasco Counties, and in many of them the most useful work happens before the State Attorney’s Office decides what to file.

How Much Weed Is a Felony in Florida?

More than 20 grams of cannabis flower is a felony. Under section 893.13(6)(b), Florida Statutes, “If the offense is the possession of 20 grams or less of cannabis, as defined in this chapter, the person commits a misdemeanor of the first degree.” Anything above that falls under section 893.13(6)(a), which makes unauthorized possession of a controlled substance a third-degree felony. Twenty grams is about seven-tenths of an ounce, so the exact lab weight matters.

The charge climbs in steps, from a misdemeanor for a small amount of flower to trafficking above 25 pounds.

Maximum terms come from section 775.082 and section 775.083, Florida Statutes. Our Tampa drug crimes attorney team first checks whether the State charged the right step.

Is THC Illegal in Florida?

THC from marijuana is illegal without a medical marijuana card, while THC within the legal hemp limit is not. Cannabis is a Schedule I substance under section 893.03(1)(c), Florida Statutes, which also lists tetrahydrocannabinols separately. Section 893.02(3) defines cannabis to include “the resin extracted from any part of the plant,” but excludes marijuana dispensed in conformance with the medical marijuana law and “hemp as defined in s. 581.217.”

That is why “possession of tetrahydrocannabinols” or “possession of THC” is such a common charge description. It is the charge prosecutors use for vape cartridges, oils, edibles, and concentrates, and it is usually filed as a third-degree felony under section 893.13(6)(a).

Why Is a THC Vape or Concentrate Usually Charged as a Felony?

Because the 20-gram misdemeanor does not cover resin. Section 893.13(6)(b) states that for the misdemeanor, “the term ‘cannabis’ does not include the resin extracted from the plants of the genus Cannabis, or any compound manufacture, salt, derivative, mixture, or preparation of such resin.” Wax, shatter, hash, and resin oils are therefore felonies at any weight.

The State still has to prove where the THC came from. In State v. Stevenson, 307 So. 3d 784 (Fla. 4th DCA 2020), a Broward County man was charged with a felony for three THC vape cartridges with a total gross weight of 14.04 grams. The State’s chemist could not say whether the THC was resin-derived or synthetic. The Fourth District held he “could be charged with a felony only if the State could make a prima facie showing that the source of the THC substance possessed by the defendant was either artificially produced, cannabis resin, or ‘any compound manufacture, salt, derivative, mixture, or preparation of such resin,'” and affirmed dismissal of the felony with leave to refile it as a misdemeanor. Our attorneys at The Brancato Law Firm raise Stevenson in vape and edible cases where the lab report is silent about the source.

Can the State Prove It Was Marijuana and Not Hemp?

Only with chemical testing. Under section 581.217, Florida Statutes, hemp is cannabis with “a total delta-9-tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis,” and hemp-derived cannabinoids “are not controlled substances or adulterants” when they comply with the section.

The Second District applied that rule to a Hillsborough County case in Campbell v. State, 407 So. 3d 558 (Fla. 2d DCA 2025). Detectives at Tampa International Airport seized two duffle bags holding 50 vacuum-sealed bundles, and the FDLE analyst tested one 24.47-gram sample. The court held that “Legal hemp and illegal cannabis are indistinguishable by appearance, texture, and odor, such that chemical testing to determine the THC content is now needed to avoid misidentification.” When the State counts several packages toward a trafficking weight, it “must chemically test each packet.” The court reversed the trafficking conviction and ordered entry of felony possession instead.

An officer’s description of “green leafy material” is not proof of THC concentration. Our attorneys at The Brancato Law Firm demand the lab report and check exactly which items were tested.

Can Police Search Your Car Because They Smell Marijuana?

Not on odor alone in Hillsborough, Pinellas, or Pasco County. In Williams v. State, 421 So. 3d 809 (Fla. 2d DCA 2025) (en banc), a Hillsborough County passenger was searched after officers stopped the car for an obstructed tag and a rolling stop and smelled cannabis. The full Second District held that “the plain smell doctrine can no longer establish probable cause based solely on the odor of cannabis,” though odor remains a factor in the totality of the circumstances. It receded from its own 2021 precedent to the extent that precedent held smell alone was enough.

Williams himself lost on the good-faith exception, because the officers had relied on the earlier precedent, and the court certified this question to the Florida Supreme Court: “DOES THE PLAIN SMELL DOCTRINE CONTINUE TO APPLY TO ESTABLISH PROBABLE CAUSE BASED ONLY ON THE ODOR OF CANNABIS?” The Fifth District reached a similar result first in Baxter v. State, 389 So. 3d 803 (Fla. 5th DCA 2024) (en banc), holding that “Unless and until the State demonstrates that illegal cannabis has an odor that is distinct from legal cannabis,” the justification for an odor-only detention “no longer exists.” The Sixth District, which covers Polk and southwest Florida, noted the debate in 2026 but did not decide it.

The issue comes up twice: in a motion to suppress before trial, and in the Campbell testing question at trial. Our post on the Second DCA limits on the plain smell doctrine covers the search issue in more depth.

Does a Medical Marijuana Card Protect You From a Possession Charge?

Only when you follow the rules. Under section 381.986, Florida Statutes, a qualified patient “may not possess more than a 70-day supply of marijuana, or the greater of 4 ounces of marijuana in a form for smoking” or an amount the department approves, and “all marijuana purchased must remain in its original packaging.”

The protection also ends outside “medical use.” A patient who buys from anyone other than a licensed medical marijuana treatment center “violates s. 893.13” under section 381.986(12)(d), and using marijuana other than low-THC cannabis in a vehicle or in public is a separate offense under section 381.986(12)(c). Carrying dispensary product in the car is allowed; using it there is not.

Our attorneys at The Brancato Law Firm bring the patient’s certification, receipts, and packaging to the prosecutor early. Patients also face a federal firearm question, covered in our post on whether you can own a gun if you use marijuana in Florida, and the card is no defense to impaired driving, as our guide to marijuana DUI in Florida explains.

What If the Marijuana Was Not in Your Pocket?

Then the State has to prove constructive possession. Section 893.13(6)(a) reaches “actual or constructive possession,” which is how passengers, roommates, and drivers of borrowed cars end up charged. Our post on constructive possession in Florida explains how courts decide whether the State has tied the item to you, and our attorneys look closely at who else had access.

When Does Possession Become Intent to Sell or Trafficking?

Intent to sell is a third-degree felony at any weight. Under section 893.13(1)(a), a person “may not sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance,” and cannabis is in the third-degree group. Giving away 20 grams or less with no payment is a first-degree misdemeanor under section 893.13(3).

Trafficking starts above 25 pounds. Under section 893.135(1)(a), Florida Statutes, possession of “in excess of 25 pounds of cannabis, or 300 or more cannabis plants” is a first-degree felony with mandatory minimums.

A plant counts only if it has “some readily observable evidence of root formation, such as root hairs.” After Campbell, the State must also test each package it counts, so our attorneys attack the trafficking weight first.

Did Florida Legalize Recreational Marijuana?

No. Amendment 3, the 2024 adult personal use measure, received 5,950,589 yes votes, or 55.9%, according to the Florida Division of Elections official results. Constitutional amendments in Florida need 60%, so it failed. Hillsborough County voters approved it 382,243 to 277,062, but the statewide total controls.

A follow-up measure will not reach the 2026 ballot. After the Secretary of State directed county election officials to strike about 70,600 petition signatures, the First District upheld that direction and the Florida Supreme Court declined review in March 2026, Insurance Journal reported. Possession without a medical card is still a crime in 2026.

What Changes for Hemp on November 12, 2026?

The federal definition of hemp narrows on November 12, 2026. According to the Congressional Research Service report Change to Federal Definition of Hemp and Implications for Federal Enforcement (December 3, 2025), Public Law 119-37 moves the federal limit to a total THC concentration, excludes final hemp-derived cannabinoid products with “more than 0.4 milligrams of THC per container,” and excludes cannabinoids synthesized or manufactured outside the plant. “The new definition will take effect November 12, 2026.”

Florida’s hemp statute was last amended in 2023 and does not adopt the federal text, so state charges still turn on section 581.217 and its 0.3% delta-9 limit. Our attorneys at The Brancato Law Firm treat a hemp product’s label and certificate of analysis as evidence from the first day.

How Many Drug Arrests Happen in Hillsborough County?

More than ten thousand a year. In 2025, Hillsborough County recorded 10,502 drug arrests, a rate of 666.5 per 100,000 residents, according to FDLE arrest data published by Florida Health CHARTS. That is up from 8,124 in 2024 and 6,914 in 2016, a 52% increase over nine years, while Florida’s statewide total fell from 103,461 in 2016 to 89,562 in 2025.

Pinellas County recorded 5,269 drug arrests and Pasco County 1,817 in 2025. These figures count arrests for all drug categories, since CHARTS does not separate marijuana, and they are arrests, not convictions.

How Do Our Attorneys Fight a Marijuana or THC Charge?

One element at a time:

1. Challenge the search. If the stop or search rested on odor, we file a motion to suppress under Williams and Baxter.
2. Demand lab proof. Under Campbell, the State needs chemical testing of THC content to tell marijuana from hemp, and it must test each package it counts toward a trafficking weight.
3. Test the felony label. For vapes, edibles, and oils, we hold the State to Stevenson’s requirement that it prove a resin or synthetic source.
4. Check the weight. A few grams decide whether the case is a misdemeanor or a felony.
5. Contest possession. In shared cars and homes, we press the State to prove knowledge and control.
6. Show medical compliance. A card, a receipt, and original packaging can end a case.
7. Push for diversion or a no-file decision. Completing a program, or persuading the prosecutor not to file, ends the case without a conviction.

What Diversion Programs Are Available for Marijuana Charges in Hillsborough County?

Several, run through the State Attorney’s Office for the 13th Judicial Circuit, which lists them on its programs page. Its Drug Education and Treatment Reducing Recidivism program (DETRR) “is limited to drug possession cases for low-risk, non-violent offenders,” and a participant who completes the assigned treatment or education and stays arrest-free for six months has the possession charge dismissed.

The office also lists the Adult Pre-Arrest Diversion Program, established in Hillsborough County in July 2017 for people with minimal or no record who commit an eligible misdemeanor, under which no charges are filed if the program is completed; a Misdemeanor Intervention Program for first-time offenders; and Pretrial Intervention for “certain first-time felony offenders.” Our Hillsborough County criminal defense attorney team negotiates entry into these programs, and our representation before charges are filed can put the lab issues and the client’s record in front of the prosecutor before a charging decision.

What Should You Do After a Marijuana Arrest in Tampa?

Act before the first court date. A person arrested in Hillsborough County sees a judge at first appearance within 24 hours and is held at the Orient Road Jail until release, and the State Attorney’s Office then decides what to file. Four steps protect the case:

• Do not explain. Statements about whose bag it was are the State’s best evidence of possession.
• Do not consent to searches. Say so plainly to preserve the suppression issue.
• Keep your records. Save your medical card, receipts, hemp labels, and certificates of analysis.
• Call a lawyer early. Diversion and pre-file options are easiest to reach before the charging decision.

Frequently Asked Questions About Marijuana Possession in Florida

What happens for a first-time marijuana possession offense in Florida?

For 20 grams or less, a first offense is a first-degree misdemeanor punishable by up to a year in jail and a $1,000 fine, and in Hillsborough County many first-time cases qualify for diversion. The Brancato Law Firm checks eligibility for DETRR, pre-arrest diversion, and the Misdemeanor Intervention Program before anything else; see our drug crimes defense page.

Can marijuana possession charges be dropped in Florida?

Yes, through suppression, failed lab proof, or completion of a diversion program such as DETRR. The Brancato Law Firm often contacts the prosecutor before the filing decision through our pre-file advocacy work.

Is a THC vape cartridge a felony in Florida?

It is usually charged as one, because resin-derived THC is excluded from the 20-gram misdemeanor. Under State v. Stevenson, the State must show the THC came from resin or was synthetic, and our attorneys at The Brancato Law Firm hold the lab to that showing in every vape case.

Can police search my car in Florida if they smell weed?

Not on odor alone in Hillsborough, Pinellas, or Pasco County after Williams v. State, though odor can still count with other facts. The Brancato Law Firm reviews the body camera video to see what else the officers claimed, as our plain smell doctrine post explains.

Can I be charged with possession if I have a medical marijuana card?

Yes, if the marijuana did not come from a licensed treatment center, was out of its original packaging, or exceeded the supply limit. Our attorneys at The Brancato Law Firm gather the certification and receipts that show compliance and present them to the prosecutor.

Is hemp flower or delta-8 legal to carry in Florida in 2026?

Under Florida law, hemp within section 581.217’s 0.3% delta-9 THC limit is legal, though the federal definition narrows on November 12, 2026. The Brancato Law Firm treats the product’s label and certificate of analysis as defense evidence, and the Congressional Research Service report explains the federal change.

Talk to a Tampa Marijuana Defense Attorney

The best time to call is before the lab report comes back and the State makes its filing decision. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will review the search, demand the lab testing, and press for diversion or dismissal. Call (813) 727-7159 for a free, confidential consultation; you can reach us at any hour, and our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for criminal defense in Spanish and Haitian Creole in Tampa.

For more about our defense strategies, visit our Tampa Drug Crimes Defense page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

At The Brancato Law Firm in Tampa, we defend people facing constructive possession charges. Our founder, Rocky Brancato, has spent more than 25 years in Hillsborough County’s criminal justice system. He served as Chief Operations Officer of the Hillsborough County Public Defender’s Office, the largest criminal defense operation in Tampa Bay, so he knows how the local system handles drug cases from the defense side.

What Does the State Have to Prove in a Constructive Possession Case?

All three of the following have to be proven beyond a reasonable doubt. If even one of them is not proven, you cannot be convicted of possession.

• You knew the drugs were there. Knowing means you were aware the drugs were in the car, room or bag.
• You could control the drugs. Control means you had the power to decide what happened to the drugs, such as keeping them, moving them or getting rid of them. The State tries to prove control by showing that you control the place where the drugs were found, such as a car you drive or a bedroom that is yours. It can also try to show that you hid the drugs there.
• The substance is the drug named in the charge. If the charge says cocaine, the State has to prove the substance was cocaine.

The State does not have to prove the drugs belonged to you. Florida defines possession by knowledge and control, so drugs owned by a friend or roommate can still be charged as yours if you knew about them and could control them. That is why saying “they weren’t mine” does not end the case by itself.

Whether anyone else used the place changes how the State proves knowledge. If you were the only person using the car or room, Florida’s jury instruction allows the jury to infer that you knew the drugs were there. If other people shared it, the jury is not allowed to make that inference, and the State has to prove your knowledge with other evidence. That evidence can be circumstantial evidence, meaning facts that point to your knowledge without directly proving it.

What Is the Difference Between Actual and Constructive Possession?

In actual possession, the drugs are on your body, so where they were found shows you possessed them. Drugs close enough for you to reach easily also count as actual possession, but only if they are under your control. The State still has to prove you knew about them. In constructive possession, the drugs are somewhere else, so the State has to prove both your knowledge and your control from the circumstances.

Constructive possession is not limited to drugs. Florida uses the same idea for other things that are illegal to possess, such as a firearm when the person charged is a convicted felon, or child sexual abuse material (CSAM) found on a shared computer. In each of these cases, the State has to show that you knew the item was there and could control it, and sharing the car, home or computer with other people makes that harder to prove.

Is Being Near Drugs Enough for a Possession Charge?

No, when the drugs are in a place someone else controls, being close to them does not prove you possessed them. Florida’s jury instruction tells jurors that closeness alone does not show control in that situation. For example, if you were visiting a friend’s apartment and police found drugs in your friend’s kitchen cabinet, being in the apartment would not prove you possessed those drugs. The State would need evidence that ties you to them.

What If the Drugs Were Found in a Shared Car or Home?

A place counts as shared when more than one person uses it. That includes the rooms everyone uses in a home you rent with a roommate, such as the kitchen and living room. It also includes your own car when other people are riding in it. Sharing a place does not clear you. Florida’s jury instruction says two or more people can possess the same drugs at the same time. This is called joint possession, and each of those people is considered to be in possession.

Sharing does change the evidence the State needs. In Brown v. State, the Florida Supreme Court held in 1983 that when a place is shared, both your knowledge of the drugs and your ability to control them “must be established by independent proof.” Independent proof means evidence other than your connection to the place, such as something you said or your fingerprints.

Brown also made one exception to the independent proof rule, for drugs in plain view. Plain view means the drugs were out in the open where anyone could see them. When drugs are in plain view in a shared place, and an owner or occupant of that place is present, the court held that those facts are enough to support that person’s conviction for constructive possession. An occupant is someone who lives in the place or shares control of it, such as a roommate who rents the apartment but does not own it.

A passenger riding in someone else’s car and a guest visiting someone else’s home do not count as occupants under this rule. For them, drugs in plain view are not automatically enough for a conviction, and the State needs other evidence that ties them to the drugs. Two decisions from Florida’s Second District Court of Appeal show what happens when the State has no other evidence against a visitor or a passenger. That court hears appeals from Hillsborough, Pinellas and Pasco counties, so its decisions apply to cases there.

• In Sundin v. State, the court reversed the conviction of a man visiting a hotel room he had not rented, even though the drugs were within his reach.
• In Wynn v. State, the court reversed a passenger’s conviction for cocaine found in the driver’s-side door handle. The cocaine was not in plain view, and the State had no evidence connecting the passenger to it.

Can You Give Me an Example of Constructive Possession?

These four hypothetical situations show which facts tend to help the State and which tend to help the defense:

• Your own car, driving alone. Police find pills in the glove box of a car you own and no one else drives. Because you alone control the car, the jury may infer you knew about the pills. These facts favor the State.
• Your own car, with a friend riding along. Police find the same pills in the closed glove box while your friend sits in the passenger seat. The car is shared, so the jury cannot infer that you knew about the pills. Unless the State has other evidence tying you to them, these facts favor the defense.
• A friend’s car, with drugs in plain sight. You are a passenger, and a bag of powder is sitting on the center console. As a passenger, you are not an occupant under the plain view rule, so the bag being visible is not automatically enough for a conviction. Without other evidence tying you to the bag, these facts favor the defense.
• A shared apartment, with drugs on the coffee table. You rent an apartment with a roommate, and police find cocaine on the living room coffee table while you are home. You are an occupant, and the drugs were in plain view. These facts favor the State.

What Evidence Do Prosecutors Use to Prove Constructive Possession?

Florida courts have accepted these kinds of evidence as proof that ties a specific person to drugs found in a shared space:

• Your own statements. Telling police the drugs are yours, that you bought them, or that you use drugs can connect you to the drugs.
• Items found with the drugs that match what you told police. In Thompson v. State, a man told police he had bought methamphetamine and described how he used drugs. A straw found with the drugs fit that description, and the court held that his statements and the straw together were enough to tie him to the drugs.
• Fingerprints or DNA. Physical evidence can tie you to the drugs themselves.

Is Constructive Possession Punished Less Than Actual Possession?

For drug charges, the penalties are the same, because Florida’s drug law treats actual and constructive possession as one offense. The penalty depends on the drug and the amount. Possessing a controlled substance is generally a third-degree felony, which carries up to five years in prison. Possessing 20 grams or less of marijuana is a first-degree misdemeanor, which carries a sentence of up to one year. Larger amounts of a drug can lead to a separate charge of drug trafficking. Our Tampa drug crimes defense page explains how the penalties change for other drugs and amounts.

That is not true of every possession charge. A convicted felon can be found guilty of possessing a firearm under section 790.23 of the Florida Statutes through either actual or constructive possession. But the three-year minimum mandatory prison sentence in section 775.087(2)(a)1 applies only when the felon actually possessed the firearm. If the State can prove only constructive possession, such as a gun found in a bedroom closet, that minimum mandatory does not apply.

How Do You Fight a Constructive Possession Charge?

These are the main defenses:

• You did not know the drugs were there. If someone else left the drugs in a car or room you use and you never knew about them, the State cannot prove you knew.
• The drugs were in a place someone else controlled. Drugs in another person’s bedroom, purse or backpack are in a place that person controls, and being near them does not prove you controlled them.
• Nothing ties you to drugs in a shared space. Without evidence such as your statements or your fingerprints, sharing the car or home where the drugs were found is not enough to prove you possessed them.
• You did not know the substance was an illegal drug. This defense applies when you knew the substance was there but did not know it was an illegal drug.
• The search was illegal. If police searched the car, home or bag without a legal basis, a motion to suppress can keep the State from using the drugs as evidence against you. If the drugs are kept out, the State may not have enough evidence left to continue the case.
• The evidence is too weak to go to trial. When the State’s evidence cannot show knowledge or control, a motion to dismiss asks the court to end the case before trial.

The defense of not knowing a substance was illegal comes from section 893.101 of the Florida Statutes. For example, it would apply if you knew a pill bottle was in your car but believed it held a legal medication. The State does not have to prove you knew a substance was illegal. Instead, your lack of knowledge is an affirmative defense, meaning a defense you raise yourself. It gives the jury a reason not to convict you even if the State proves the things it has to prove.

If you raise this defense, the jury is told that the law allows jurors to presume that a person who possessed a controlled substance knew the substance was illegal. The jury does not have to accept that presumption. If it believes you did not know the substance was illegal, it can find you not guilty. The defense does not help if your position is that you never knew the drugs were there, because that is a different question the State has to prove.

When a case involves a search, it helps to know how police are trained to conduct one. Our founder, Rocky Brancato, taught criminal procedure to officers as a police academy instructor. Our team uses that knowledge to compare what the officers in your case did with what they were taught to do. When the officers did not follow their training, we use that to challenge their testimony about the search.

In Florida, prosecutors decide after an arrest whether to file formal charges. The defense can present its arguments to prosecutors before they make that decision. When drugs are found in a shared car or shared luggage, we challenge whether the State can prove constructive possession. Luggage on a trip is a common example. When several people packed, carried or had access to the same suitcase, the State has to show which of them knew about the drugs and could control them. If the evidence cannot answer that, it is an argument we can raise with prosecutors before charges are filed.

Knowledge matters even when the drugs are found on your body. In a trial we describe in our case study It’s the Client’s Call, a client was charged after hospital staff found cocaine in his pants pocket while he was being treated for a medical emergency. No witness ever saw him conscious and in control of the drugs, and the jury found him not guilty. Each case is unique. Past results do not guarantee future outcomes.

Frequently Asked Questions About Constructive Possession in Florida

Should I talk to police about drugs found near me?

Talk to a criminal defense attorney before you say anything more to police about the drugs. In a shared car or home, your own words can be the evidence that ties you to drugs the State otherwise could not connect to you. Even saying “those belong to my roommate” can help the State, because it shows you knew the drugs were there.

Can I be convicted for drugs found in my roommate’s bedroom?

If you do not use your roommate’s bedroom, it is a place your roommate controls. Living in the same apartment does not prove you possessed drugs kept there. The State would need evidence tying you to those specific drugs, such as your fingerprints or something you said about them.

Does the State need fingerprints or DNA to prove constructive possession?

No, Florida does not require fingerprints or DNA to prove constructive possession. Other evidence, such as your own statements, can connect you to the drugs instead. The State still needs some evidence beyond the fact that you were near the drugs. In one Florida appeals case, two people could reach the drugs equally, and the State offered no fingerprints, DNA or other evidence tying the accused to them. The court reversed the conviction.

Talk to Us About a Constructive Possession Charge

A possession charge for drugs that were not on you is frightening, especially before you know what evidence the State has. If you or someone close to you has been charged with possession for drugs found in a car, home or bag, we can review the evidence the State has connecting you to those drugs and explain what it means for your case. Call The Brancato Law Firm at (813) 727-7159 for a free, confidential consultation. We are available 24/7 when someone has just been arrested. Our office is at 620 E. Twiggs Street, Suite 205, in downtown Tampa.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

In a thrown-drugs case, the suppression hearing usually comes down to a few seconds of video: did the person stop before the object left his hand, or after? I’m Rocky Brancato, and before founding The Brancato Law Firm, P.A., a Tampa criminal defense firm, I taught officers the legal limits of arrest authority as a police academy instructor. I have since tried more than 150 jury trials to verdict. Our attorneys build every abandonment challenge around that sequence, matching the officer’s report against body camera footage frame by frame.

What Does “Abandonment” Mean When Police Find Drugs You Threw?

Abandonment means you gave up your privacy interest in an item by throwing it, dropping it, or leaving it behind, so police can pick it up and use it without a warrant. Florida courts apply one critical limit: the abandonment must be voluntary. An item you discard because police illegally seized you is treated as the product of that illegal seizure, and it can be suppressed.

The Florida Supreme Court drew this line in Hollinger v. State, 620 So. 2d 1242 (Fla. 1993). The court explained that a person who flees from a show of police authority has not been seized, while a person who stays in place and submits has been seized. If a person submits to an illegal stop and then drops contraband, the evidence must be suppressed. The court added that police do not have to order a person to drop anything for the abandonment to be involuntary.

This matters most in drug possession cases, which our Tampa drug crimes attorney page covers in more detail, because a tossed baggie or pill bottle is often the only evidence the State has.

What Is the Difference Between “Drop Then Stop” and “Stop Then Drop”?

“Drop then stop” means you got rid of the item before you were seized, so it is voluntarily abandoned and admissible. “Stop then drop” means you had already submitted to police authority when you got rid of it, so the abandonment is involuntary if the stop was illegal. The legality of the officer’s order does not matter in a “drop then stop” case.

The U.S. Supreme Court set the federal rule in California v. Hodari D., 499 U.S. 621 (1991). Hodari ran when he saw officers, and he tossed a rock of crack cocaine just before an officer tackled him. The State conceded the officer had no reasonable suspicion to stop him. The Court still held the cocaine admissible because a person is seized only by physical force or by submitting to a show of authority, and Hodari had done neither when he threw it.

Florida’s Fourth District applied that rule in Johnson v. State, 640 So. 2d 136 (Fla. 4th DCA 1994). An officer told Johnson to stop. Johnson kept walking briskly, stepped onto a porch, threw something down, and only then turned toward the officer and said, “What, officer?” The State conceded the officers had no lawful reason to stop him. The court called it a very close case, but it upheld the trial judge’s finding that the drop came before the stop, so the evidence came in.

When Are You “Seized” by Police in Florida?

You are seized when an officer physically restrains you or when you submit to an officer’s show of authority, such as an order to stop. Submission does not require handcuffs or even a spoken command. Courts look at what you actually did in the seconds before the item left your hand.

Hollinger shows how little it can take. Masked Orange County deputies in SWAT-style gear pulled into a parking lot during a drug sweep, announced “Orange County Sheriff’s Office,” and approached a group. Hollinger put his hand behind his back and dropped a tissue holding six rocks of cocaine. No deputy told him to freeze. The trial judge found that a reasonable person would have felt he was not to move, and the Florida Supreme Court upheld the suppression.

In Lang v. State, 671 So. 2d 292 (Fla. 5th DCA 1996), a deputy stopped Lang, who was walking at night with a flashlight in a high-crime area, without any reasonable basis. The deputy told Lang to step back to the patrol car, and Lang began to comply. When the deputy told him to take his hand out of his pocket, Lang threw a pill bottle behind him. The Fifth District held that Lang had submitted by starting to comply, so the abandonment was involuntary, and it reversed his conviction.

Compare State v. Canada, 715 So. 2d 1164 (Fla. 5th DCA 1998). Officers asked Canada what was in his hand. Instead of showing them, he turned, threw a film container about 25 feet over a chain-link fence, and tried to run. Because Canada never yielded, the Fifth District held the abandonment voluntary and reversed the trial court’s suppression order.

When our attorneys evaluate a thrown-evidence case, we ask five questions:

1. Did an officer give an order or make a show of authority, such as lights, commands, or blocking your path?
2. Did you stop, turn toward the officer, raise your hands, or begin following an instruction?
3. Did the item leave your hand before or after that act of compliance?
4. Did you try to run after throwing it?
5. What does the video show, compared with what the arrest report says?

What Did the Fifth District Decide in Jeffries v. State (2026)?

The Fifth District held that a man who stopped and turned toward an officer before throwing a pill bottle had already submitted, so the abandonment was involuntary. The case is Jeffries v. State, No. 5D2024-1721 (Fla. 5th DCA July 31, 2026), and it is the newest Florida appellate decision applying the stop-then-drop rule.

Larry Sapp, an off-duty Clay County School District police officer, was home in Putnam County, outside his jurisdiction, when his daughter told him someone had tried to break into his patrol car. Sapp saw Jeffries leaving his property, identified himself as law enforcement, and ordered him to stop. Jeffries kept walking. Sapp later found him near an apartment complex and again ordered him to stop. This time Jeffries stopped and turned toward Sapp. As Sapp moved in to arrest him, Jeffries made a throwing motion. A responding officer found a pill bottle containing narcotics where the object landed, and a search of Jeffries turned up a stun gun.

The court applied Hollinger, Hodari D., and Johnson. It found that Jeffries had already complied with the second order to stop when he threw the bottle, which made the facts line up with Lang rather than Canada. The court noted that Jeffries had walked away the first time but stopped the second time, and the second stop is what mattered. Because the abandonment was involuntary, the pill bottle could not justify the search that found the stun gun as a lawful search incident to arrest.

The court reversed the order denying suppression, vacated Jeffries’s conviction for possession of an electric weapon or device by a convicted felon under section 790.23, Florida Statutes, and remanded. At the hearing, defense counsel had limited the motion to suppress to the stun gun count, so the opinion does not decide what happens to the drug possession counts.

Jeffries also held that the arrest itself was unlawful. An officer outside his jurisdiction has only a private citizen’s arrest powers, which reach only a felony or a breach of the peace committed in the citizen’s presence, and the court found Sapp saw neither. We cover that part of the case in our posts on disorderly conduct and breach of the peace and on whether an off-duty police officer can arrest you in Florida.

The evergreen lesson from Jeffries is simple. Stopping and turning toward an officer is submission, and anything thrown after that moment is suppressible if the stop or arrest was illegal.

Why Does the Legality of the Stop Decide Everything?

The legality of the stop decides the case because a stop-then-drop argument wins only when the seizure was illegal. If the officer had reasonable suspicion to detain you, the evidence comes in even though you had submitted before you threw it. Every abandonment motion therefore has two parts: when you were seized, and whether the officer had a lawful basis to seize you at that moment.

Under the Florida Stop and Frisk Law, section 901.151, Florida Statutes, an officer may temporarily detain a person only when the circumstances reasonably indicate the person has committed, is committing, or is about to commit a crime. The statute also bars evidence from a search under that section unless the search complied with the statute. Our post on whether police can stop and frisk you in Florida walks through what counts as reasonable suspicion.

A recent First District case shows why the defense must attack the stop directly. In Smith v. State, No. 1D2025-0497 (Fla. 1st DCA Sept. 23, 2026), Smith tried to keep officers from seeing a cellophane baggie in his hand, including by stomping on it after he dropped it, and the court counted those efforts among the facts supporting probable cause to search his vehicle. Smith also challenged his initial detention, but his brief argued only probable cause and never addressed reasonable suspicion, so the court held he had not shown the detention was unlawful and affirmed. The Second District, which hears appeals from Tampa Bay, treats cannabis odor differently than the First District did in Smith, as we explain in our post on whether police can search your car for smelling weed in Florida.

Can Throwing Drugs Add a Tampering With Evidence Charge?

Yes, throwing drugs can lead to a tampering charge, but tossing them in plain view does not automatically qualify. Under section 918.13, Florida Statutes, the State must prove you knew an investigation was pending or about to begin and that you altered, destroyed, concealed, or removed an item with the purpose of impairing its availability. Tampering is a third-degree felony, punishable by up to five years in prison.

In State v. Jennings, 666 So. 2d 131 (Fla. 1995), Jennings swallowed suspected cocaine rocks the moment an officer shouted “police!” The Florida Supreme Court held that swallowing an item can be tampering, and that throwing evidence away in an officer’s presence may also be tampering depending on the circumstances.

The Second District, whose decisions bind Hillsborough, Pinellas, and Pasco courts, applied that rule in E.I. v. State, 25 So. 3d 625 (Fla. 2d DCA 2009). During a traffic stop in Plant City, a passenger tossed a package of methamphetamine out the truck window at the driver’s direction, and it landed in plain view on a gas station parking lot. The court held this was abandonment, not attempted tampering, because nothing showed he intended to alter, destroy, or conceal the package, and it ordered him discharged. The court pointed to swallowing drugs or dropping them into a drainage outlet as the kind of acts aimed at destroying evidence.

Abandonment doctrine works at two stages of the same case. At the suppression hearing, the question is whether the toss was voluntary. At trial on a tampering count, the question is whether the toss was a plain abandonment or an act meant to destroy or hide the evidence. Losing the first argument does not end the second.

Is Running From Police a Separate Crime in Florida?

Running from police can be charged as resisting an officer without violence, a first-degree misdemeanor under section 843.02, Florida Statutes, punishable by up to one year in jail. The charge requires that the officer was lawfully executing a legal duty when you ran.

In C.E.L. v. State, 24 So. 3d 1181 (Fla. 2009), a juvenile ran when he saw deputies at an apartment complex known for drug activity, then kept running after they ordered him to stop. The Florida Supreme Court held that his unprovoked flight in a high-crime area gave the deputies reasonable suspicion, so his continued flight in defiance of their order was resisting without violence. The court also held that the person must know the officer intends to detain him, and the officer must be justified in making the stop when the resistance occurs.

Running rarely helps. Anything you throw while running is admissible under Hodari D., and if the officer had a lawful basis to stop you, the flight adds a separate charge. In Tampa Bay arrest paperwork, our attorneys routinely see a resisting count stacked on top of the charge that started the encounter, and in our Hillsborough County practice it is often the most winnable charge on the arrest affidavit. Our post on resisting an officer without violence in Florida explains those defenses.

What Charges Can Follow When Police Recover Thrown Evidence?

A thrown item usually produces a possession charge, and the throw itself can add tampering or resisting counts. Drug charges are a steady share of local arrests: in 2020, law enforcement in Hillsborough County reported 3,028 drug arrests out of 32,519 total arrests, according to the Florida Department of Law Enforcement’s 2020 county arrest data, the last year FDLE published county arrest totals in that format. That is about one of every eleven arrests in the county.

How Do Our Attorneys Challenge Thrown Evidence?

Our attorneys challenge thrown evidence by rebuilding the encounter second by second and filing a motion to suppress when the timeline shows a stop-then-drop on an illegal stop. The motion asks the judge to exclude the item and anything found because of it, as happened with the stun gun in Jeffries.

1. Pin down the sequence. We compare body camera and dash camera footage, dispatch audio, and the arrest report to fix the exact moment of the order, the moment of compliance, and the moment of the throw.
2. Test the basis for the stop. We identify what the officer knew before giving the order and whether it amounted to reasonable suspicion under section 901.151.
3. Challenge the officer’s account. Legal scholars have flagged “dropsy” testimony for decades. Law professor Christopher Slobogin, in Testilying: Police Perjury and What to Do About It, 67 U. Colo. L. Rev. 1037 (1996), describes data showing that police testimony that arrestees dropped drugs as officers approached increased after Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court decision that applied the exclusionary rule to state police. Video now lets us test that kind of claim.
4. Follow the fruit. If the throw was involuntary, we move to suppress everything that flowed from it, including later searches of your person or car.
5. Defend the add-on counts. We attack tampering and resisting charges on their own elements, even if the suppression motion fails.

Our post on motions to suppress evidence in Tampa explains how these hearings work.

What Should You Do After an Arrest Involving Thrown Drugs?

Talk to a defense attorney before you talk to anyone else about the case, and do it quickly, because the evidence that proves the sequence can disappear. Private surveillance systems often record over old footage, and witnesses forget details.

• Do not explain to police, cellmates, or friends why you threw something. Those statements can be used against you.
• Write down, privately, the order of events: when the officer spoke, when you stopped, and when the item left your hand.
• Note any businesses, homes, or vehicles nearby that may have cameras, and anyone who saw the encounter.
• Do not post about the arrest on social media.
• If officers released you and said the item would be tested, charges can still be filed later. Our representation before charges are filed can begin now.

Frequently Asked Questions About Thrown Evidence in Florida

Can police use drugs I threw while running away from them?

Usually yes, because a person who is running has not been seized, so anything thrown during the chase is treated as voluntarily abandoned under Hodari D. and Canada. The Brancato Law Firm still examines whether you actually stopped, even briefly, before the throw, since that moment can change the outcome. Our stop and frisk guide explains when police can lawfully chase and detain you.

Is it tampering with evidence to throw drugs on the ground in front of an officer?

Not automatically, because Florida requires proof that you intended to destroy, conceal, or remove the item, and a toss in plain view that police easily recover can be plain abandonment under E.I. Our attorneys at The Brancato Law Firm attack the intent element directly and use the recovery location and video to show nothing was hidden. Swallowing drugs or dropping them down a drain is treated more seriously under section 918.13.

Can thrown drug charges be dropped in Florida?

Yes, thrown drug charges can be dropped, most often when a judge suppresses the item and the State has no other evidence to prove possession. The Brancato Law Firm also evaluates diversion options, and Hillsborough County offers programs such as Pretrial Intervention and Drug Court that can result in dismissal. See our page on drug possession defense in Tampa for more.

What if I threw a gun when police approached me in Florida?

The same abandonment rules apply to a gun as to drugs, so a gun thrown before you were seized is admissible, while a gun thrown after you submitted to an illegal stop can be suppressed. For clients with a prior felony, The Brancato Law Firm treats the suppression issue as the center of the defense, because possession by a convicted felon under section 790.23 is a second-degree felony. Our Tampa gun crimes lawyer page explains those charges.

What if police let me go after I threw something and said they would test it?

You can still be charged later, because the State can file charges after lab results come back. The Brancato Law Firm can contact the prosecutor before a decision is made and preserve video while it still exists. Learn more about our pre-file advocacy work.

Does it matter if the officer was off duty or outside his jurisdiction?

Yes, because an officer outside his jurisdiction generally has only a private citizen’s arrest powers, and Jeffries shows an arrest outside those limits is unlawful. Our attorneys at The Brancato Law Firm check where the officer was, whether he was on duty, and what he personally saw before the arrest. Read more in our post on whether an off-duty police officer can arrest you in Florida.

What if the police report says I dropped the drugs before I stopped?

The report is not the final word, because the judge decides the sequence at the suppression hearing from all the evidence, including video and your testimony. The Brancato Law Firm lines up the report against the footage and dispatch timeline to find gaps. Johnson shows how close these calls can be.

Thrown Evidence Cases Are Won on the Timeline

The first thing our attorneys do in a thrown-evidence case is lock down the timeline: the video, the dispatch audio, and the officer’s report, compared second by second before footage is lost or memories fade. The Brancato Law Firm, P.A. was founded by Tampa Criminal Defense Attorney Rocky Brancato, and our attorneys defend drug, gun, and resisting charges in Hillsborough, Pinellas, and Pasco Counties. Call (813) 727-7159 now, while the evidence that shows when you stopped still exists. For more about our defense strategies, visit our Drug Crimes page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. Our attorneys defend drug cases across Tampa Bay from the pre-file stage forward — engaging the State Attorney’s Office before charges are finalized — and the first documents we audit in every case are the lab report and the charging document, side by side. As two Florida appellate decisions this year show, when those documents don’t match, convictions come apart.

Does the State Have to Prove the Exact Drug It Charged?

Yes — and if it proves a different one, you are entitled to an acquittal, not a do-over. In Quinones Santiago v. State, No. 6D2024-1003 (Fla. 6th DCA July 24, 2026), the State charged a man with trafficking in fentanyl, identified in the charging document by fentanyl’s specific statutory listing. At trial, the State’s own evidence showed the substance in the pill bottle was actually para-fluorofentanyl — a fentanyl derivative with an extra fluorine atom, listed in a different schedule under a different statutory subsection. The State argued the difference was “a distinction without a difference.” The Sixth District disagreed: “the statutes tell a different story,” and under long-standing Florida law, where an offense can be committed in various ways, the evidence must establish it was committed in the manner charged. Because the State charged one substance and proved another, it failed to prove its case — the court reversed and remanded for a judgment of acquittal.

The court even added a pointed admonishment: problems like this “should be avoided by the State taking a moment to double-check its charging documents.” That double-check is exactly what our attorneys do from the defense side, because prosecutors filing hundreds of cases do not always match the lab chemistry to the statutory subsection — and the mismatch is a complete defense that must be raised the right way, at the right moment, to end the case rather than merely delay it.

Why Does the Exact Substance Matter So Much?

Because Florida’s drug statutes treat chemically similar substances as legally different crimes, with different schedules and different consequences. The controlled-substance schedules live in Fla. Stat. § 893.03, and the trafficking statute, Fla. Stat. § 893.135, then attaches weight thresholds and mandatory minimum sentences to specific listed substances — in the disjunctive, as alternative ways of committing the crime.

Two lessons follow. First, the chemistry is a moving target — clandestine labs constantly tweak molecules, and the Legislature responds with derivative and analog listings — so whether a specific molecule actually falls within the charged listing is a genuinely litigable question that requires reading lab data against statutory text. Second, the label on the charge controls the trial: the State cannot charge one listing and convict on another, which is why the defense audit starts with the information itself.

Can You Be Convicted Twice for the Same Drugs?

No — and in May 2026 a Florida appellate court threw out three duplicate convictions in a single case to prove it. In Medders v. State, No. 4D2025-0875 (Fla. 4th DCA May 27, 2026), the defendant was convicted of both simple possession and possession with intent to sell the same drugs, plus two identically worded trafficking counts. The Fourth District reversed the duplicates. Simple possession “is subsumed by” possession with intent — every element of the lesser crime sits inside the greater one, so under the double jeopardy test codified at Fla. Stat. § 775.021(4), only one conviction can stand. And the two trafficking counts collapsed into one for a subtler reason: the statute’s opioid-trafficking provision defines a single crime of “trafficking in illegal drugs” measured by the aggregate weight of “any” of the listed substances — so possessing two different listed opioids is one trafficking offense, not two.

Two practical notes from Medders. The double jeopardy question is answered from the charging document alone — not from what the evidence later showed — which means a sharp reading of the information can identify doomed counts before trial ever starts. And these errors are correctable even after conviction, because a true double jeopardy violation is fundamental. In a system where every added count raises the scoresheet, the plea leverage, and the sentence exposure, deleting duplicate counts is not housekeeping — it changes outcomes.

Does the “Wrong Drug” Defense Always Work?

No — and an honest read of 2026’s cases shows the line. Ten days before Quinones Santiago, the same appellate court ruled for the State in State v. Smith, No. 6D2024-0495 (Fla. 6th DCA July 10, 2026), a case about cyputylone — a designer stimulant in the “bath salts” family that is not listed anywhere in the schedules by name. The trial court had dismissed the charges for exactly that reason. The Sixth District reversed: Florida’s substituted-cathinone listing works by chemical structure, not by name, covering any compound containing the defined core structure “whether or not” further modified — language the court read as “regardless of whether.” Because cyputylone contains that core structure, it is a controlled substance even though no statute spells out its name.

Put Smith and Quinones Santiago side by side and the real rule emerges. The State gets the benefit of broad, structure-based schedule definitions — a novel molecule cannot dodge the statute with a cosmetic modification. But the State is held strictly to its own paperwork: whatever listing it charges is the listing it must prove. The defense in a designer-drug case is therefore rarely “this substance isn’t illegal” and usually “the State charged the wrong listing, proved the wrong substance, or can’t establish the chemistry beyond a reasonable doubt.” That is a technical fight, fought with chemists and statutes — which is precisely why who reads the lab file matters.

How Do Defense Lawyers Attack the Substance Element?

By treating the State’s chemistry as a claim to be tested, not a fact to be accepted. In Tampa Bay drug cases, our attorneys work through a fixed sequence: obtain the full lab file (not just the one-page report) — the instrument data, the analyst’s notes, the testing method; compare the identified molecule against the exact statutory listing charged in the information, the way Quinones Santiago requires; scrutinize chain of custody from roadside seizure through the FDLE or private lab; and where the stakes justify it, retest the substance with an independent laboratory through our forensic expert network. The same audit covers the counts themselves: possession counts that duplicate intent-to-sell counts, multiple trafficking counts built on one group of substances, and weights that only cross a mandatory-minimum threshold when separate items are improperly combined. Every one of those issues is strongest when raised early — some belong in pre-file discussions with the State Attorney’s Office, some in motions, and some (like the Quinones Santiago mismatch) at the judgment-of-acquittal stage in trial. For the trafficking-specific playbook, including mandatory minimums and threshold weights, see our guide to defending a fentanyl trafficking charge in Florida.

What Should You Do After a Drug Arrest in Tampa Bay?

Say nothing about what the substance “is” — you may know less than you think, and so may the field test. Roadside presumptive tests are notoriously unreliable, deputies routinely charge based on them, and the formal lab report often arrives after the State’s filing decision. That window between arrest and filing is where our attorneys do some of their most valuable work: putting testing problems, search issues from the traffic stop or cannabis-odor search, and charging-document defects in front of the prosecutor before the information is filed. In Hillsborough County that decision typically comes within weeks, through the State Attorney’s Office at the 13th Judicial Circuit. If you were just arrested, our step-by-step guide to what to do after being arrested in Tampa covers the first 72 hours.

For more about our defense strategies, visit our Hillsborough County criminal defense page.

For how The Brancato Law Firm, P.A. defends these cases, see our Tampa drug crimes defense practice.

Frequently Asked Questions

What happens if the lab report shows a different drug than I was charged with?

That mismatch is a defense — potentially a complete one. Under Quinones Santiago v. State (Fla. 6th DCA 2026), the State must prove the substance identified in the charging document; proving a chemically and legally different substance entitles the defendant to a judgment of acquittal. Our attorneys compare the lab file to the information in every drug case for exactly this reason.

Can the State just fix the charge if it named the wrong drug?

Often it can amend before trial — which is why the timing of raising the issue is strategic, and why defense counsel may litigate it at the judgment-of-acquittal stage rather than handing the State an early warning. How and when to raise a substance mismatch is a judgment call The Brancato Law Firm, P.A. makes case by case, based on the discovery timeline and the State’s proof.

Is para-fluorofentanyl the same as fentanyl under Florida law?

No. Fentanyl is a Schedule II substance with its own statutory listing; para-fluorofentanyl is a Schedule I “fentanyl derivative” under a different subsection — chemically similar, legally distinct. As the Sixth District put it, “the statutes tell a different story,” and the difference decided Quinones Santiago.

Can I be convicted of both possession and possession with intent to sell?

Not for the same drugs. Simple possession is subsumed within possession with intent to sell, so double jeopardy — codified in Fla. Stat. § 775.021(4) — allows only one conviction, as Medders v. State (Fla. 4th DCA 2026) reaffirmed. If both convictions appear on a judgment, the duplicate can be struck, even after the fact.

Can I get two trafficking charges for two different drugs?

It depends on which listings are involved. For the opioid group in § 893.135(1)(c)1. — morphine, opium, hydromorphone and related substances — Medders holds there is one crime of “trafficking in illegal drugs” measured by aggregate weight, not a separate count per substance. Different drug families under different subsections can still be charged separately. We chart every count against the statute in trafficking cases because the count structure drives the mandatory minimums.

Do drug charges in Florida carry mandatory minimum sentences?

Trafficking charges under § 893.135 do — tied to substance and weight thresholds — which is why the exact substance and the exact weight are both worth fighting over. A successful challenge to the substance identification, the aggregation of weights, or the count structure can move a case out of mandatory-minimum territory entirely. The Brancato Law Firm, P.A. builds drug defenses around those pressure points.

Quinones Santiago and Medders are 2026’s reminders that drug cases are won on precision — the right molecule, the right statute, the right number of counts. If you or someone you love is facing a drug charge anywhere in Tampa Bay, call the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato — at (813) 727-7159 before the State’s filing decision is made. The lab file and the charging document are already being written; someone should be auditing them for you.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.