The “Fletch” Defense: Why Proximity Isn’t Proof

By: John Guidry

“It’s all ball bearings nowadays. Now you prepare that Fetzer valve with some 3-in-1 oil…” — Fletch (Chevy Chase)

Have you ever met someone who thinks they know what they’re talking about, yet something in your gut (your BS detector) tells you they don’t have it all figured out?

Scientists are notorious for this. They throw around big words like “5-HT2B receptor” to explain psychedelics, but when you dig deeper, they often can’t tell you how it actually works. They label things, but they don’t explain the fundamental connection.

Prosecutors are just as bad as scientists when it comes to acting like they have it all figured out.

When it comes to criminal accusations, we defense attorneys make sure the prosecutors have made every connection they are required to make. And in possession cases, those connections are often missing.

Was a gun or drug found near you, but it wasn’t yours?

Proximity is not possession. Call John today at (407) 423-1117.

The Case: D.V. v. State

Our real-life case for today involves the possession of a firearm by a juvenile, but the law applies to any contraband (drugs, porn, stolen property).

In D.V. v. State, 2018 Fla. App. LEXIS 5989 (Fla. 3rd DCA 2018), a juvenile (D.V.) was chilling in the back seat of a nice four-door Audi. His two friends were up front.

• The Stop: Police approached the parked car.
• The Discovery: An officer looked through the window and saw a gun on the back seat.
• The Proximity: The gun was “approximately six or twelve inches from D.V.’s leg.”

We’ve been here before. Three people in a car. A gun is found inches away from one person. That person gets convicted, right?

Not so fast.

Actual vs. Constructive Possession

To understand why D.V.’s conviction was overturned, you have to understand the two types of possession.

1. Actual Possession: The gun is in your hand or pocket. (Open and shut case).
2. Constructive Possession: The item is not on you, but it is in a place you can access (like a car or a room).

In a constructive possession case involving a jointly occupied vehicle (more than one person), the State has a much higher burden. They must prove:

1. Knowledge that the contraband was there.
2. Dominion and Control over the contraband.

The “Independent Proof” Requirement

Here is the technicality that saves lives: The State is required to prove control with “independent proof.”

You cannot prove D.V. possessed this gun just because he was the closest person to it. That is an assumption, not proof.

What does “Independent Proof” look like?

• Confession: “Yeah, that’s my gun.” (Guilty).
• Witness Testimony: The driver says, “I saw D.V. put the gun there.” (Guilty).
• Forensics: D.V.’s DNA or fingerprints are on the gun. (Guilty).

In D.V. v. State, the prosecutors had none of this.

• The detectives never saw D.V. reach for the gun.
• D.V. voluntarily gave DNA, but the State never introduced a match.
• The gun was never tested for fingerprints.
• There was no evidence D.V. owned the Audi.

The Verdict: The appeals court overturned the conviction. They ruled that while the State proved D.V. was near the gun, they failed to connect him to it with independent evidence.

John’s Takeaways

• Distance Means Nothing: In a car full of people, being 6 inches away from a gun doesn’t make it yours. If the State can’t prove you touched it or knew about it, the case is weak.
• Silence is Golden: Notice how a confession would have been “independent proof”? By remaining silent, D.V. forced the State to find other evidence (which they didn’t have).
• Science vs. Law: Unlike scientists who can vaguely blame a “receptor,” prosecutors cannot vaguely blame “proximity.” We force them to show their work. If the connection isn’t there, the conviction shouldn’t be either.

Charged with Possession in a Shared Car?

If you were arrested because something was found near you in a car or house with other people, do not assume you are guilty. We can challenge the “connection.”

Call me at (407) 423-1117. Let’s test their evidence.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.