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Q:     With drug possession, is hiring an expert witness to prove that the person is a user, instead of a trafficker, something done?  When raided, 6 grams of heroin was found on the property… Scroll down to read more!

Q:     With drug possession, is hiring an expert witness to prove that the person is a user, instead of a trafficker, something done?  When raided, 6 grams of heroin was found on the property of a couple, both users. Because of the law about 4 grams or more of heroin being considered trafficking, could that amount be considered for personal use, split between both of them, considering that when they were taken to jail, their high level drug abuse became apparent? What about the likelihood of that being the case, if the police also found a lot of narcotic pills in addition to the heroin? Seeking to get a feeling for the case’s legal cost. Have gotten a couple of lawyer consults, but now have more questions. Trying to decide what is affordable, and if it would make a difference in this case or not. Please tell me what else may help you help me w/my question. I’ll write it. Thank you so much for your consideration & time!
A:  Chosen as “Best Answer” by Asker!
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Answered .  No. For possession purposes intent is generally irrelevant.

In FL, there is no practical difference between a user and a possessor, and the difference between a possessor and a trafficker is simply a matter of weight (i.e. how much of the controlled substance we are speaking about).

Trafficking implies but does not mean “sale”.  It is a distinction which is based entirely upon weight.  In your case you are correct: With opioids the “cut-off” is 4 grams, under 4g = possession and 4g or over = trafficking (which kicks in minimum mandatory sentencing and bumps the offense up from a 3rd degree felony to a 1st degree felony, the difference being 5 vs 30 years exposure, respectively, in prison.

As for splitting the 6 grams that likely won’t work. In Florida we subscribe to the “principal theory”, meaning that all persons with knowledge and intent are equally responsible for a given offense (in this case both would be charged with trafficking – whether they will be convicted or not is another issue entirely) and drug use / abuse is NOT a defense in Florida.  Moreover, the presence of additional controlled substances should result in additional possession charges.

All of this said, still, they may or may not enjoy viable defenses to the charges, affirmative or otherwise, or there may be factual, legal, procedural or substantive mechanisms by which to attack and beat the charges in their unique case, I do not know and the forum to find out is NOT on line; rather it is in the sanctity of attorney’s offices, where statements are privileged and cannot be used against anyone.

You should bear in mind that Florida has 20 different Judicial Circuits, each of which deals with cases in its own manner. Moreover, each of those Judicial Circuits has a given number of criminal court Judges (each of whom is unique), as well as its own State Attorney’s Office (each of which has its own policies and procedures), and a bunch of Assistant State Attorneys (who, although they operate on guidelines as established by their office, are each sentient and independent persons), and each case has its own set of variables (“free radicals” if you will) all of which combine to make it impossible to predict what will happen in a given case.

I know that you have spoken to a few lawyers already but the best way to get competent advise is going to be to find the right skilled, experienced, dialed-in and local 813 area criminal defense lawyer who can follow-up on your information with questions of her/his own, as well as review the police reports and whatever evidence that you may provide and then offer both an informed opinion and a viable plan of attack (I call this a “reasonable litigation objective”), and hopefully one which is within your budget.

I hope that I have been helpful in answering your question.

First, second and third: No attorney-client relationship exists by virtue of any Q&A with Michael A. Haber, Esq. on Avvo. Fourth: Anything that you post on Avvo (or on similar sites) or on any social media is by its nature public. It is essentially an admission / confession and can be introduced into evidence as a statement against your interest in a subsequent legal proceeding. Once posted you lose any reasonable expectation of privacy, so, as this is an open forum (with no privilege attached), please be extra careful when considering what to post online (forewarned is forearmed.) 

When it comes to the subject of “Cops, Courts and Constitutions” you should always have a skilled and experienced criminal defense attorney who is focused on serving your interests.  While we can’t stop the cops from arresting you, as your legal counsel Michael A. Haber, PA will ensure that your rights are respected from the moment that representation begins and that any abuses which may have occurred beforehand are remedied.

At Michael A. Haber, P.A. “Its all about reasonable doubt”!
Michael A. Haber, Esq. is prepared to speak with you about your case!
Cell: 305-798-2220; Office: 305-381-8686; Toll Free: 1-888-SHARK-8-1




THIS BLOG POST (AS ARE ALL OF HABERPA BLOG POSTS) IS A PUBLIC SERVICE ANNOUNCEMENT WHICH IS PRIMARILY DESIGNED, BY WAY OF REAL WORLD EXAMPLE, TO ASSIST THE GENERAL PUBLIC IN AVOIDING CONDUCT WHICH COULD FORESEEABLY RESULT IN ARREST AND PROSECUTION!  


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Michael A. Haber

At Michael A. Haber, P.A. "it's all about reasonable doubt"! Whether in State or Federal Courts, Michael A. Haber, P.A. strives to ensure that his client's rights are respected and that his clients receive top-tier legal representation and counsel. For more than a quarter of a century I have striven to make Michael A. Haber, P.A. a business that custom tailors its services to meet the needs of the client. This incorporates such things as (but is not limited to) doing my best to meet clients at their convenience (as opposed to mine), in locations and at times which are mutually convenient (sometimes at their homes, places of business, independent ground - having free wifi and excellent coffee any Dunkin Donuts always works for me - and occasionally even at odd hours), structuring fees to reasonably accommodate the parties, making myself personally available to the client as close to 24/7 as is possible and, perhaps most importantly, giving careful and comprehensive consideration to both micro and macro issues in a given case so as to be able to agree upon and effort toward a viable litigation objective. This is why I refer to Michael A. Haber, P.A. proudly providing "boutique criminal defense litigation" (being "a small company that offers highly specialized services"), and this is a large part of Michael A. Haber, P.A.'s mission statement Accordingly, Michael A. Haber, P.A. has provided personalized and boutique legal services to both individuals and entities, primarily in the South Florida area, since 1991. With no history of professional discipline whatsoever, Michael A. Haber, Esq. zealously advocates his client's interests and custom tailors his services to meet each client's particular situation, needs and desires. Toward that end Michael A. Haber, Esq. makes himself directly available to his clients whether in person, over the phone (305-381-8686 or Toll Free 1-888-SHARK-8-1), by cell, verbally or text (305-798-2220), by e-mail ([email protected]) on Facebook ( http://www.facebook.com/haberpa ), on Twittter, (@Sharkjy910) on AOL/IM (Sharky910), and also why I consistently add information to the public on both the Michael A. Haber, P.A. Criminal Michael A Haber PA Criminal DUI Defense Litigation Miami Blog (http://www.habercriminallaw.blogspot.com/) and with my "Webisode" series on YouTube (http://www.youtube.com/c/MichaelHaberLaw), whcih currently features 222 briegf VideoFAQ's on a variety of Criminal Defense, DUI and BUI related topics. When you hire Michael A. Haber, P.A. you get Michael A. Haber, Esq.! And remember, at HaberPA, it's all about reasonable doubt!

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  • 5 star review  Top notch, very skilled, and highly attentive. Mr. Haber is a fantastic criminal defense attorney.

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    July 26, 2017
  • 5 star review  Thanks again. You are second to none when it comes to defending your clients. For that, I thank you

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    April 10, 2017
  • 5 star review  Excellence in criminal defense. Very informative And upfront of wiyh your crimanal defense

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    April 11, 2016
  • 5 star review  will be my go-to guy should the need arise..

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    October 21, 2014
  • 5 star review  Michael is the person to call when you need help or advice! He understands.

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    January 11, 2014
  • 5 star review  Outstanding legal scholar!

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    December 21, 2013
  • 5 star review  Michael has helped my family and I on a few occasions and the results were excellent, he represents his clients with the utmost respect and professionalism.

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    August 12, 2013
  • 5 star review  ABSOLUTELY Michael. Your my second favorite Lawyer behind my cousins Law firm in Brooklyn. The Berkman Law Firm.

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    August 11, 2013
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    July 20, 2013

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