Brad Post: Welcome to the FloridaDefense.com Podcast. We are speaking to Tampa Cocaine Defense Lawyer Mike Kenny with the Bauer, Crider, and Parry Law Firm. How are you doing, Mike?

Mike Kenny: I’m doing well. How are you?

BP: Well let’s kind of talk about today. We’ve talked about an overview of the three different categories of drug crimes. We’ve talked about marijuana. Now let’s talk about cocaine. Crack cocaine. Is it kind of the same? Different categories?

MK: Yes, we do have different categories. The first thing we should point out is that cocaine or crack, as a lot of people might refer to it—that hard, rock-like substance that has a cocaine mixture in there—both are treated exactly the same. There isn’t a harsher punishment for one versus the other.

BP: Whether it’s a powder or a rock, I guess?

MK: Exactly. Whether it’s in powder or rock form, what’s punished in the state of Florida is the ingredient that makes it illegal, and it doesn’t matter because with the way the statute is written, it’s “any mixture thereof.” So it can be a mixture of anything, and if it has cocaine in it, then you have yourself in a situation where you’ve got a possession of a controlled substance. It kind of reminds me—talking about that “any mixture thereof”—when I was a prosecutor several years ago, I had a very unique trial where an individual literally had a bag of baby powder. It was 99.9% baby powder, and for whatever reason—and you kind of figure out why these folks do what they do—but for whatever reason, there was just a pinch of cocaine added to that powder. And I don’t know if the pinch was added so it would look like it for testing, but it was going to be sold to basically trick someone who was buying it. But whatever the reason, there was just this very small amount, and I remember when we sent that item away for testing, they said they had to take several testings that came out powder, powder, powder, powder, and there was just one small—I mean not even maybe one-tenth of a gram that they were able to find—and it tested positive for cocaine. Now, I can tell you that, if you wanted to be an absolute literalist to the statute, because there was one-tenth of a gram of cocaine in there “and any mixture thereof”, and then you weigh the entire amount—and the entire amount could be 30 grams or 40 grams—that person was facing a trafficking charge of cocaine for having one-tenth of a gram, a very decimally small amount of cocaine mixed in this bag. I will say the prosecutor has discretion, and in that particular set of circumstances, we decided not to prosecute that person with a trafficking charge. But it’s a dangerous scenario when people start thinking all they have to be concerned about is the amount of the drug. But it’s not the amount of the drug, it’s whatever it’s mixed with to make it the product that is that’s penalized, and that’s what’s weighed—the total product.

BP: So is there the misdemeanor, the felony, the trafficking with cocaine?

MK: Well, with cocaine, there is no misdemeanor possession charge. Now, there is the paraphernalia used to hold the cocaine, to store the cocaine, and to maybe ingest the cocaine—like a pipe that might be used to smoke the cocaine or a crack rock—that would be a misdemeanor. But the actual substance itself is always punished as a third-degree felony, punishable by up to five years in the Department of Corrections. And then, there’s the other level, which is the trafficking level. Like I mentioned in a podcast or two ago, trafficking can be accomplished in a couple of different ways. It can be accomplished by transporting drugs into the state. It can be constituted by selling, so if you sell a certain amount and it’s over a certain weight. Or it can be just simple possession, and when I say simple possession, I mean just being in possession of an item that weighs a certain amount is enough to basically get yourself situated with a trafficking charge. So the minimum amount you have to have to qualify for a trafficking charge is 28 grams. With 28 grams or more, but less than 200 grams—with that comes a three-year minimum mandatory prison sentence if convicted and a $50,000 fine. The next level up from that is 200 grams, so if a person has 200 grams or more but less than 400 grams, that carries with it a seven-year minimum mandatory prison sentence and a $100,000 fine. The next category up from that is 400 grams or more but less than 150 kilograms, and that carries with it a minimum mandatory sentence of 15 years in prison and a $250,000 fine. And the last one is 150 kilograms or more commits a first-degree felony of trafficking cocaine, and you get life imprisonment. There is nothing less that you can get. I mean, less than 150 kilograms is a significant amount, but it’s also life imprisonment just for possessing that amount.

BP: Okay. Anything else on cocaine?

MK: Just the fact that cocaine is a different drug than marijuana. The one unique thing about it is—the state of Florida, in several cases, has determined that with certain drugs, you can prove they are the drugs that they are just by observation, just by looking at it, maybe by the odor that it has. And marijuana is a drug that qualifies for that. An officer can go into court and basically say, “Based on my training and experience, I can tell you that this green, leafy substance with this distinct green odor is marijuana.” An officer can do that—they don’t have to send it away for testing. In a possession of cocaine case, although officers do have significant training and experience, cases still suggest that a person needs to actually test it (and that means chemically test it). What you have happen a lot in the field is a person gets stopped by law enforcement for whatever reason, the officer encounters the individual, and through the investigation, the officer determines that the person is in possession of cocaine. What the officer will do before he actually arrests the person is he will test it. And he will test it with what’s called a field presumptive kit. A field presumptive kit isn’t really something that would be admissible in court necessarily, because the officer is given this little vial, he throws some of the substance in the vial, shakes it, and it turns a certain color. The officer probably couldn’t even tell you how it works, or how it’s performed, or how reliable it is. So that is the presumptive kit—that’s enough for them to arrest you. That’s enough for them to write an affidavit of probable cause for a judge to review and determine that you should be held in custody or at least get a bond. But what has to happen in a trial, if you’re going to be convicted, is they have to send that off to some agency for testing—they need an actual chemist—and the reason why that’s significant is, what happens over time in a lot of circumstances is that certain things, like crack cocaine, for instance—because it’s a water-based mixture, a lot of times that will dry up. And I can tell you again when I was a prosecutor many years ago, I had a trafficking trial with an individual, and in the case, the person disappeared at one period of time, and he was arrested a long time later, so when he finally went to trial, it was a long time after these drugs were sitting in the evidence locker. And over that period of time, when we had it weighed, the drugs ended up weighing about 27 point something grams, and the number I needed was 28 grams. So it just goes to show that, if it sits in a locker and the water evaporates and then you just have the powder left over, then it ends up weighing less. In that particular case, we had evidence that it was weighed at the sheriff’s office prior to being sent off for testing, so we still were able to meet our requirements. But it’s unique that these things have to be tested—they have to be sent off for weighing and testing, and it’s different than marijuana. A lot of times I don’t make the decision when I’m representing a client until I see those results from law enforcement because there have been cases when people will have what they believe is cocaine and it turns out to be something else, or some other controlled substance. Or it turns out the weight isn’t exactly what people think it is.

BP: All right. Anything else, Mike?

MK: That’s it.

BP: All right. You’ve been listening to the FloridaDefense.com Podcast. We’ve been speaking to Attorney Mike Kenny of the Bauer, Crider, and Parry Law Firm.