Medical marijuana is legal now in Florida, right? As a drug crimes attorney who has represented hundreds of clients on marijuana charges from Palm Beach to Indian River County, perhaps I have seen it all. Here’s a legal guide on what you can and cannot do when using marijuana in Florida.
MYTH #1: “I don’t have my marijuana prescription card yet, but I voted, and they passed a law, so I won’t be arrested if I have pot.”
Truth: I hear this from clients often. Florida voters passed Amendment 2 allowing the medical use of marijuana with a valid prescription. The problem now is that the legislature and courts are battling as to what that exactly means, how you can “take” your medicine, as well as what cities and areas can distribute medicinal marijuana.
Best advice: seek a licensed doctor who may qualify you to hold a valid medical marijuana card. You should only obtain your marijuana through a licensed and permitted distribution pharmacy. Keep your prescription card on you at all times with the marijuana in its government-approved issued container.
MYTH #2: “I can smoke my medical marijuana. And if I’m caught with (non-prescribed) pot, I’m just issued a traffic ticket, and nothing goes on my record.”
Truth: After Amendment 2 was passed, Florida legislature then said smoking medical marijuana was illegal. A lower court in Leon County has deemed that patients should be able to smoke marijuana, and now the State of Florida is appealing.
In the Palm Beaches and Treasure Coast (Palm Beach, Martin, St. Lucie, Okeechobee, and Indian River Counties), police officers will make arrests for even misdemeanor possession of marijuana (20 grams or less). Arrests can be with handcuffs and jail for a few hours, or a written arrest with a “Notice to Appear” and date to come to court. Either way, it is an arrest, and is a misdemeanor charge, punishable by up to one year in jail with one year of driver license suspension.
If you don’t have an attorney, pleading guilty can also entail an adjudication of guilt (conviction) on your record, court costs, fines, a substance abuse class, possibly probation for up to one year, and your record cannot ever be sealed or expunged. If you have prior criminal history/ drug possession, jail is possible.
Best advice: For now, use your marijuana as prescribed. Non-criminal Citations are given in select areas such as Miami-Dade County, Tampa, Key West, and Orlando. Otherwise, you could be charged with a misdemeanor crime. Hire a lawyer to ensure that you are receiving the best outcome in your case, and to avoid any jail/probation/driver license suspension.
MYTH #3: “I can have my CBD (cannabidiol) Oil and Kratom powder with me. It can’t be illegal- I bought it off Amazon!”
Truth: Unfortunately, you may still be arrested for possessing CBD oil if an officer has probable cause to believe it has THC, Tetrahydrocannabinol. First, CBD oil, if made correctly, should have all forms of THC removed. If there is any, even trace, amounts of THC present in the CBD oil, it is illegal under Florida law. A police officer has the right to test the oil in your possession to ensure that it is CBD versus THC or hash oil.
The testing is commonly done with a “field test kit” that the officer will have at the scene, that takes mere minutes to give results. These tests are unreliable and often inadmissible in court. However, if the oil comes back positive on the field kit, the officer has probable cause to arrest you on scene. Kratom powder is still legal to possess in Florida, for now, but NOT in Sarasota County. Other counties are considering bans as well.
Best advice: Ask an attorney what the Courts in your area have ruled regarding Kratom powder. As for CBD oil, until field kits improve, it is risky to possess CBD oil, especially oil that you may purchase from an untrusted source. Your lawyer should immediately file for a court-approved lab to test the oil. If there is no THC in the oil, your charges should be dismissed.
MYTH #4: “I can’t be arrested for taking my medicinal marijuana and making edibles/juices/butters/ foods. Or if I am, it is just a misdemeanor.”
Truth: The Courts and lawyers are still fighting this one out, and the Florida Supreme Court may hear arguments on the issue soon. Currently, in the Palm Beaches and Treasure Coast, breaking down the marijuana to extract the THC to make a tincture and/or put in butters, oils, food, and edibles can be prosecuted for a felony of Possession of Controlled Substance, Possession of THC, and/or even Possession with Intent to Sale/Manufacture/Distribute under the prosecutor’s discretion, or if there is evidence that you are selling/manufacturing and/or distributing.
Best advice: Until your local court or the Florida Supreme Court makes a decision, leave the cooking to Martha Stewart. Ask an attorney.
MYTH #5: “I buy in bulk. I smoke my medical marijuana. Sharing marijuana with my friends is not a crime.”
Truth: Again, Florida Courts again are fighting whether a person can “smoke” their medical marijuana. Leon County says you can smoke your medical marijuana. Current law dictates that it is illegal to “distribute” marijuana unless you are an approved distribution facility. Even if you don’t sell to your friends, even “passing” some around to your guests can be prosecuted for distribution, a felony, if evidence is substantial. The large quantity also gives a State Attorney perhaps more evidence to tell a judge you possessed with “intent to distribute.” A jury would perhaps disagree, but you can be prosecuted.
Best advice: If you are arrested, your lawyer can fight the felony, but case law can be unclear in this territory.
MYTH #6: “I believe in the Second Amendment and keep a gun in my home. I can have my marijuana and a gun. This is perfectly legal.”
Truth: Believe it or not, Federal (that’s United States’) law dictates that it is a felony to possess any controlled substance, including marijuana, and a firearm at the same time. This law includes if the firearm is in a gun safe, drawer, or somewhere “safe” in your home, and your marijuana is on your coffee table. Also know that marijuana is still a Federal crime, but is permitted with a prescription in the State of Florida.
Best advice: This law may be deemed one of the most shocking, but it’s true. Consult with an attorney on how to navigate this if you have a prescription and you are a gun owner.
MYTH #7: “I can’t get a DUI for driving if I’ve used my medical marijuana. That only applies if I’m drunk. Plus, I’m a more careful driver if I’ve smoked.”
Truth: Florida is strict with DUI laws. Under the law, if your “normal faculties are impaired” on a substance including alcohol, marijuana, prescription medications, illegal drugs, etc. you can be prosecuted. For alcohol, the legal limit is .08 or above. For marijuana, it is murkier. You can be asked to submit to a urine or blood test to detect your marijuana levels. If the levels are indicative of “impairment,” then you can be arrested and charged.
Best advice: Drive sober, or get an Uber/Lyft/friend to transport you. If you are stopped, and you have imbibed, you can, and perhaps in first offenses, should, refuse to submit to testing. Speak with a lawyer you trust on this issue.
MYTH #8: A cop can only search my car with a search warrant, so I can drive with my (non-prescribed) marijuana. And if he doesn’t read me Miranda Warnings, the entire case gets thrown out.
Truth: In Florida, a police officer can stop you with probable cause of a traffic infraction, like say speeding or running a stop sign. If the officer then states he smells marijuana in the vehicle, or if a drug dog is already there and alerts after a free air sniff of the outside of the car during the writing of the citation, an officer has probable cause to search your car without a warrant. Miranda Warnings apply to statements you make, and not evidence found, so charges can still stand.
Best advice: Don’t drive with any non-prescribed marijuana, and don’t smoke or use in your car. If you must have the marijuana with you, a locked container in the trunk may be your best bet, and do not consent to any search, nor make any statements, period.
MYTH #9: “I was arrested for marijuana, but I’ll get Drug Court, and my charges will be dropped after I take an online class.”
Truth: The Treasure Coast and Palm Beaches are tough with who gets accepted to Drug Court and what Drug Court entails. For misdemeanor possession of marijuana, Martin County and Palm Beach County generally will not offer Drug Court. That is reserved for felony possession. Drug Court is not just an “online class” that makes charges disappear.
Typically on the Treasure Coast, Drug Court lasts one year, with random urinalysis. You cannot use any drug, including alcohol, for one year, attend meetings, court sometimes twice a month, counseling, and evaluations. Its intent was to help those with addiction, and has done an excellent job. But it is no “easy way out.”
Best advice: Drug Court is wonderful, if it’s offered in your case, and if you can comply with all terms.
MYTH #10: Is there anything I can do with my (prescribed or non-prescribed) marijuana and not be arrested?
Truth: Yes, get a prescription for marijuana, and use responsibly as prescribed. The law is still evolving as we speak, so make sure you or your lawyer keep you up to date on the current laws.
Best advice: Talk to a lawyer you trust.
Author’s Note and Legal Disclaimer: This article was meant for informative and entertainment purposes, but should not be deemed as legal advice, or replace the advice of an attorney. If you or a friend have a case or questions on these issues, call a licensed Florida Bar attorney whom you trust.
Ed Note: Barbara Kibbey Wagner, Esq. is a criminal defense attorney and founding Partner at KIBBEY/ WAGNER law firm. She has been awarded the prestigious honor of one of the “Top 40 Under 40” lawyers in the entire United States for her criminal defense work. She has handled thousands of criminal cases, and handles cases in State and Federal Court.