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Unlawful Medical Marijuana Use in Florida

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In Florida, it is unlawful to possess, use, deliver, transfer, or administer medical marijuana except as authorized by a physician's certificate issued pursuant to Florida Statute 381.986.

Unlawful Uses of Medical Marijuana

Pursuant to Florida Statute 381.986(1)(j), even if a person has a medical marijuana prescription, it is unlawful to:

  1. Possess, use, or administer marijuana not purchased or acquired from a medical marijuana treatment center.
  2. Possess, use, or administer marijuana in the form of commercially produced food items other than edibles or marijuana seeds.
  3. Use or administer any form or amount of marijuana in a manner inconsistent with the medical marijuana prescription.
  4. Transfer marijuana to a person other than the prescribed patient or the patient’s caregiver.
  5. Use or administer marijuana in the following locations:
    1. On any form of public transportation, except for low-THC cannabis not in a form for smoking.
    2. In any public place, except for low-THC cannabis not in a form for smoking.
    3. In a qualified patient’s place of employment, except when permitted by his or her employer.
    4. In a state correctional institution, such as a jail, prison, or work release camp.
    5. On the grounds of a preschool, primary school, or secondary school, except as provided in Florida Statute 1006.062(8).
    6. In a school bus, a vehicle, an aircraft, or a motorboat, except for low-THC cannabis not in a form for smoking.
  6. Smoke marijuana in an enclosed indoor workplace.

Penalties for Unlawful Medical Marijuana Use

The penalties for Unlawful Medical Marijuana Use are determined by the manner in which the medical marijuana was possessed, used, or administered.

Use of Medical Marijuana in a Public Place, Conveyance, or School

In Florida, the use of medical marijuana in a public place, conveyance, or school is a First Degree Misdemeanor and punishable by up to one (1) year in jail, one (1) year of probation, and a $1,000 fine [1]

Cultivating or Acquiring Medical Marijuana from Unapproved Source

In Florida, a medical marijuana card holder or caregiver who cultivates marijuana or who acquires marijuana from a source other than a medical marijuana treatment center will be prosecuted as if the person does not possess a medical marijuana card. [2]

Cultivation of Marijuana

In Florida, Cultivation of Marijuana is a Third Degree Felony punishable by up to five (5) years in prison, five (5) years of probation, and a $5,000 fine.

Possession of Marijuana Acquired from Unapproved Source

In Florida, Possession of less than 20 grams of Marijuana acquired from an unapproved source is a First Degree Misdemeanor and punishable by up to one (1) year in jail, one (1) year of probation, and a $1,000 fine.

The crime of Possession of 20 grams or more of marijuana acquired from an unapproved source is a Third Degree Felony and punishable by up to five (5) years in prison, five (5) years of probation, and a $5,000 fine.

Defenses to Unlawful Medical Marijuana Use

In addition to the pretrial defenses and trial defenses that can be raised in any criminal case, specific and common defenses to the crime of Unlawful Medical Marijuana Use are:

Constructive Possession

If the marijuana was found in a place where more than one person had access, the prosecutor would have to comply with the law of constructive possession, which requires the prosecutor to prove the following two elements before you can be convicted of Unlawful Medical Marijuana Use: [3]

  1. Knowledge of the marijuana's presence;
  2. Dominion and control over the marijuana.

Below are scenarios where it can be argued the prosecutor could not meet their burden of proving constructive Possession of Marijuana.

Scenario 1: You were stopped while driving a friend’s car and police found marijuana in the glove box, they would be unable to convict you of Unlawful Medical Marijuana Use unless they had proof you knew the marijuana was present.
Scenario 2: You were driving your car, had a friend with you, and your friend takes his personal stash of marijuana and places it at his feet. The police then stop you, see your friend’s stash, and arrest both of you. They should be unable to convict you of Unlawful Medical Marijuana Use because even though you knew the marijuana was present, your friend is the only person who exercised dominion and control over it.

Illegal Search and Seizure

More often than not, law enforcement exceed the scope of their authority and require people to submit to a vehicle, home, or body search; or they may coerce a person into agreeing to a search. If we can prove either instance occurred, the courts will suppress the resulting evidence as having been illegally obtained.

Other suppression possibilities that may present themselves are: if law enforcement obtained a search warrant in bad faith or if you were arrested without probable cause.

Lack of Knowledge

It is an affirmative defense to the crime of Unlawful Medical Marijuana Possession if you can prove you did not know the substance in your possession was marijuana. Importantly, this defense requires you to testify to your lack of knowledge of the substance’s illegal nature. [4]

Medical Necessity

The defense of medical necessity can be used when a person suffers from a physical illness or ailment for which there was no lawful medication available to properly treat the illness or ailment and marijuana was the only substance that could relieve the pain or suffering of the person. [5]

Overdose Defense

A person who is experiencing a drug-related overdose that needs medical assistance, or a person assisting the person that needs medical assistance, is immune from prosecution for Unlawful Medical Marijuana Use if it can be shown the evidence was obtained as a result of the overdose and need for medical assistance. [6]

Prescription Defense

While it seems obvious, many people are arrested for Unlawful Medical Marijuana Use because they are unable to produce a medical marijuana use registry identification card that was valid at the time of arrest. These arrests usually occur when law enforcement have stopped you for suspicious behavior and discover the marijuana stored in a suspicious manner or without any proof of a validly issued medical marijuana card from the State of Florida.

However, if you can produce a valid medical marijuana use registry identification card that was issued prior to your arrest, the charge will be dismissed. [7]

Temporary Possession

The defense of temporary possession can be raised where a person takes momentary, temporary, or transitory possession of marijuana from the true owner. Under such circumstances, the person is not considered to be in legal possession of the marijuana because the person never exercised complete dominion and control over the marijuana. [8]

Examples of temporary possession are when a person is handed marijuana by the true owner and asked to hide it during a police encounter, such as a traffic stop; or when holding marijuana in the presence of a drug dealer for the sole purpose of verifying or testing the marijuana prior to purchasing it; or when passing the marijuana from the owner to a third person.

Contact Criminal Defense Lawyer Richard Hornsby

If you have been charged or arrested with the crime of Unlawful Use of Medical Marijuana in Central Florida or the Greater Orlando area, contact Orlando Criminal Defense Lawyer today.

The initial consultation is free and I am always available to advise you on the proper course of action that can be taken.

References

  1. Florida Statute 381.986(12)(c)
  2. Florida Statute 381.986(12)(d)
  3. GG v. State, 84 So. 3d 1162 (Fla. 2nd DCA 2012)
  4. Florida Statute 893.101
  5. Jenks v. State, 582 So. 2d 676 (Fla. 1st DCA 1991)
  6. Florida Statute 893.21
  7. Florida Statute 381.986(12)(e)(1)
  8. Campbell v. State, 577 So. 2d 932 (Fla. 1991)