“It’s Not Mine”: Why Proximity Doesn’t Equal Possession (And How to Get the Case Dropped)

By: John Guidry

An arrest for any drug-related offense is serious.

• The Reality: Even a small baggie of marijuana can lead to a 6-month driver’s license suspension.
• The Good News: Just because the police found drugs near you doesn’t mean you are legally guilty of possessing them.

At the Law Offices of John P. Guidry II, we have represented thousands of clients facing everything from simple possession to trafficking. The first thing we look for is not just what was found, but where it was found.

Did the police find drugs in a car you were just riding in?

You might have a “Constructive Possession” defense. Call John today at (407) 423-1117.

The “Dominion and Control” Defense

In Florida, simply knowing drugs are present isn’t enough for a conviction. Prosecutors must prove “Dominion and Control.”

• The Scenario: You are in the passenger seat. Police find cocaine in the center console.
• The Law: Unless you admitted it was yours, or your fingerprints are on the bag, the State has a hard time proving you had “control” over it. Countless appellate cases show that mere proximity does not equal possession.
• The Defense: We argue that you were just a bystander. You can’t be convicted for your friend’s bad decision to stash drugs in the car.

The “Knowledge” Trap (Florida’s Weird Law)

Florida law is unusual. Since 2002, the State has allowed prosecutors to convict individuals even without proof that the accused knew the substance was illegal (eliminating the “Mens Rea” requirement).

• The Risk: While they don’t have to prove you knew the specific chemical structure, they still have to prove you knew the item was there.
• The Tactic: Police often use deceptive questioning to get you to admit knowledge. Remember: Police are legally allowed to lie to you. Never admit to knowing what is in the car without a lawyer present.

The “Way Out”: Diversion Programs (Get It Dropped)

If the evidence is strong, we don’t always have to fight a trial. We can often get the case dropped through a Diversion Program.

Orange & Osceola County Diversion Levels: As I explain in this video, there are three tiers to getting your case dismissed:

Level 1: Misdemeanor Marijuana (<20g)

• The Deal: This is the easiest program I’ve seen in 26 years.
• The Requirement: Watch a 1-hour online class. Print the certificate.
• The Result: Case Dismissed. (Don’t pay for the class until we tell you to!).

Level 2: Felony Possession (Cocaine, Heroin, Meth, Xanax)

• The Deal: Even for felonies, you can avoid a conviction.
• The Requirement: 4-hour online class, 2-hour substance abuse evaluation, and 4 hours of community service.
• The Bonus: This now includes Possession with Intent to Sell, which used to be excluded!

Level 3: Drug Court

• The Deal: Intensive treatment for those with serious addiction issues.
• The Requirement: Regular testing and counseling. It’s tough, but it keeps you out of prison.

John’s 2026 Update: Fentanyl & Venmo Trails

Note: In the past, drug cases were about baggies and scales. In 2026, they are about text messages and cash apps.

1. The “Digital” Intent to Distribute In Level 2 Diversion, we used to see “Intent to Sell” charges based on having a lot of cash or baggies.

• The 2026 Reality: Now, prosecutors subpoena your Venmo, CashApp, and Zelle history.
• The Trap: If they see repeated payments of $50 or $100 with emojis like ❄️ or 🍃, they charge you with Trafficking/Distribution, even if you only had a small amount on you. We have to fight to suppress these digital records.

2. The Fentanyl “Death by Distribution” Law Florida laws have become draconian regarding Fentanyl.

• The Danger: If you share drugs with a friend and they overdose, you aren’t just facing a possession charge—you are facing Murder Charges.
• The Defense: We must aggressively prove you were not the source. This often involves analyzing cell tower data to prove you weren’t with the victim when they obtained the fatal dose.

3. Drug Offender Probation (Statute 948.20(1)) For those who don’t qualify for Diversion, this statute is our lifeline.

• The Law: It allows the Judge to sentence you to probation/treatment instead of mandatory prison time, even if the prosecutor objects. We use this frequently to save clients from the harsh mandatory minimums associated with modern drug laws.

Don’t Face It Alone

Whether it’s a simple possession or a complex trafficking case, the goal is to keep your record clean and keep you out of jail.

Call me at (407) 423-1117. Let’s find your way out.

Options for First Time Drug Offenders | First time criminal offenses | Law Office of John Guidry

Law Office of John Guidry, P.A. · 4.6K views

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.