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Tampering With or Fabricating Physical Evidence Florida Statute 918.13

obstruction of justice lawyer 

Have you been arrested and charged with tampering with or fabricating physical evidence? This crime happens when a defendant attempts to “cover his trail.” A good example is from the movie “Up in Smoke” with Cheech and Chong where Cheech swallows a lit marijuana joint when he hears a police siren. A similar real life example of this happened in State v. Major where the defendant was chewing up marijuana when a police officer stopped him. When a person is under investigation, it is illegal to destroy or tamper with evidence.

Examples of tampering with evidence:

  • Chewing and swallowing documents.
  • Flushing drugs down the toilet.
  • Setting on fire the hard drive of the computer.
  • Removing evidence from a crime scene.
  • Deleting emails that would be looked at during an investigation.

What the State Prosecutor has to Prove to Convict the Defendant of Tampering With or Fabricating Physical Evidence

The state prosecutor has to prove beyond a reasonable doubt:

  1. The defendant knew that a criminal trial/proceeding or an investigation by a state prosecutor, law enforcement agency, grand jury, or legislative committee of this state was pending or about to be started; and
  2. Either
    1. The defendant altered, destroyed, concealed removed a record, document, or thing with the purpose to impair its truthfulness or availability in the investigation or proceeding; or
    2. The defendant made, presented, or used any record, document, or thing knowing it to be false.

The state prosecutor must prove the defendant knew he was being investigated. If you destroyed evidence but did not know you were under investigation, the prosecutor is going to have a hard time proving this crime. Using the example from State v. Major, how did the police know he was chewing up the marijuana to destroy it or just chewing it to enjoy it? There must be some facts that point to the defendant knowing of the investigation and then destroying the evidence because of the knowledge.


There are many defenses that are available. The two big areas are (1) the defendant’s knowledge of an investigation and (2) the reason for the destruction or tampering of the evidence.

Was the stopping police officer undercover? It will be difficult for a prosecutor to prove that the defendant knew of an investigation if the officers were undercover and did not identify themselves as police, See C.K. v. State, as opposed to where a defendant swallowed some objects once “Police!” was shouted. See State v. Jennings.

If the police were watching a person for drugs and never observed them destroy any drugs or find any on him, the police cannot charge a person with this crime. See C.K. v. State .


This crime is a third-degree felony, which is punishable up to 5 years in prison and a $5,000 fine. It is ranked as level 3 under the Florida Criminal Punishment Code.

Contact the Law Office of Roger P. Foley, P.A.

This charge can be defended. If you or a loved one has been arrested and charged with this crime, call our law offices so we can get to work helping you. Our law firm offices focus on criminal matters in the South Florida area. We have experience in dealing with criminal cases. Call today to schedule a 5 minute free consultation. One of our attorneys can meet with you and answer your questions. We understand that this situation is stressful and you want help in navigating these charges. Call today so we can start helping you.

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