Possession of Xanax without a Prescription


Possession of Xanex without a prescription can come with serious charges. Call Palm Beach County Law Firm of Bottari & Doyle at 561-588-2781.

Definition of Possesion

To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. In drug cases, a person may be in either actual or constructive possession of the controlled substance.

Actual possession means that the controlled substance is:

  1. Either in the hand of or on the person, or
  2. Either in a container in the hand of or on the person, or
  3. Within ready reach to the person and is under his or her control.

Constructive Possession means the controlled substance is in a place over which the person has control, or in which the person has concealed it. To prove the person was in constructive possession of a controlled substance, the state must show (1) that the defendant knew of the presence of the controlled substance and (2) that the defendant had the ability to maintain dominion and control over the controlled substance. Additionally, if the controlled substance is in a location occupied by multiple people (joint possession), such as a car, the state cannot solely rely on a person’s proximity to substance to prove constructive possession. The state would need additional evidence, such as an incriminating statement or fingerprint evidence to establish knowledge, dominion and control.

The State will have difficulty proving constructive possession in the following situation:

  1. The defendant drove a vehicle containing multiple people. The police lawfully pull the vehicle over for speeding. One of the passengers throws a bag containing marijuana on the floor. The State will have difficulty proving that either the driver or the passenger constructively possessed the marijuana, absent any additional incriminating evidence.

What Does The State Need To Prove?

To prove that a Defendant possessed Xanax without a prescription, the State must prove three elements beyond a reasonable doubt.

  1. The Defendant possessed Xanax
  2. The Xanax was the specific controlled substance alleged
  3. The Defendant had knowledge of the presence of the Xanax

Penalties for Possession of Xanax without a Prescription

Florida law states that Possession of Xanax without a Prescription is a third degree felony. Third degree felonies are punishable by any combination of the following:

  1. 5 years in prison
  2. 5 years of probation
  3. $5,000 fine

A conviction for Possession of Xanax without a Prescription also results in a mandatory one year suspension of the defendant’s driving privileges.

Defenses to Possession of Xanax without a Prescription

Fourth Amendment Violations

The police often find controlled substances by violating a person’s Fourth Amendment rights. The Fourth Amendment to the United States Constitution protects individuals from the government engaging in unreasonable searches and seizures. A Fourth Amendment violation may result in suppression of the drugs. This means that the State cannot use the evidence of the drugs gathered by the police officer, typically resulting in a dismissal of the drug charge.

Common Fourth Amendment violations occur in the following scenarios:

  1. The police did not have probable cause to believe that a traffic infraction occurred.
  2. The police did not have reasonable suspicion to believe that a crime occurred, was happening or was about to occur.
  3. The police prolonged the traffic stop to “stall” for a K-9 to arrive at the scene of the traffic stop to sniff around the vehicle.
  4. The police searched a defendant when he or she did not voluntarily consent to a search.
  5. The police searched the defendant’s vehicle without his or her consent.
  6. The police searched a defendant’s belongings without his or her consent when the defendant was a passenger in a vehicle.
  7. The police conducted an illegal pat down search of the defendant.
  8. Miranda rights violation resulting in suppression of statements.
  9. Invalid or no search warrant.

Valid Prescription

It is a defense to the charge of possession of Xanax without a prescription for a person to possess a controlled substance which he or she lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice.

Agency relationship

It is a defense to the charge of possession of Xanax without a prescription if the person in possession of the controlled substance is an agent for a person with a valid prescription. A pharmacist may dispense medication to a person’s “agent.” For example, this prescription defense is available to a person holding a family member’s medication at the request of the family member. Additionally, express authority to hold the controlled substance is not required to assert this defense. The agency relationship may be implied from the circumstances.

Inability to Prove Constructive Possession

Additionally, the State often has a difficult time proving that a defendant was in constructive possession of a controlled substance, typically in joint constructive possession situations (ex. Xanax found in a vehicle occupied by more than one person).

The law regarding possession can be confusing. What facts do and do not constitute possession are determined by case law, and require the knowledge of a skilled criminal defense attorney.

Contact Us

If you have been arrested or charged with Possession of Xanax without a Prescription contact a
Palm Beach criminal defense attorney from Bottari & Doyle at (561)-588-2781 for a free consultation.