“Let the High Times Roll”!
Despite the current failures in Florida to legalize recreational use of Marijuana, times are changing nonetheless. In this piece, we will look at the recently changed laws involving Marijuana/Cannabis possession, possible defenses to Marijuana charges and the penalties if convicted of unlawful possession, or trafficking.
Jacksonville Marijuana Defense Attorney
Marijuana Laws in Florida
Where we’ve been and where we are:
A few years ago a majority of voters in Florida voted to pass an amendment to legalize recreational use and possession of Marijuana. However, the threshold to reach (60%) was narrowly missed and the “legalize it, don’t criticize it” crowd will try again in 2022. Until then, here is what has changed with Marijuana Possession and use laws since 2017.
Medical Marijuana Passes
In 2017, Section 381.986, Florida Statutes became effective which legalized marijuana for medicinal purposes. The wording has changed over the years and in 2019, the current version was in place. The impact on the way Marijuana cases have been investigated by police and prosecuted by the state has been profound. Many sheriffs throughout the state have adopted policies that abandon the arrests of individuals found with smaller quantities of marijuana due to the inability to determine whether the substance is Hemp (discussed below), or if it’s being used medicinally.
Although you cannot smoke medicinal marijuana in your vehicle or in public, you can possess it. That is where it gets tricky for law enforcement. Many officers aren’t adequately trained on what questions to ask the person being investigated or what types of proof (e.g., MM card, prescriptions etc) to look for. The newly written marijuana possession statute (893.02(3)) specifically excludes marijuana described in Section 381.986 as well as Hemp, as defined in Section 581.217, Florida Statutes.
Also gaining “legalized” status recently was Hemp—a plant oftentimes confused with marijuana. Both Hemp and marijuana belong to the ‘cannabis’ genus of plants. However, there are stark differences between these two plants. Hemp contains much less THC (the psychoactive/intoxicating compound) and much more CBD (non-intoxicating compound) than Marijuana. In Florida, so long as the Hemp contains a THC concentration of 0.3% or less, then you are good to go. Marijuana on the other hand typically contains 5-30% THC. Although you can smoke Hemp, doing so will not get you high. Hemp is mainly used for making rope, clothing and CBD oils.
Florida Marijuana Penalties
Misdemeanor possession of Marijuana can land you in the county lock-up for up to one year, although most cases are resolved without jail sentences. Felony possession of Marijuana (greater than 20 grams) is a third-degree felony and has a maximum prison sentence of 5 years. Possession with Intent to Sell and Trafficking charges are much more serious and will expose you to a higher minimum prison sentence. Regardless of the offense level, criminal convictions could be entered in all cases so working to avoid even a misdemeanor level possession charge is important.
Possible Defenses to Jacksonville Marijuana Charges
With the passage of new marijuana laws, law enforcement has had to evolve. However, due to some technological and investigative challenges, prosecuting illegal marijuana possession cases has become exceedingly difficult. For example, there is a shortage and sometimes an outright lack of available and reliable forensic tests to measure THC concentrations as low as 0.3%. Thus, an argument can be made that unless there is some expert available to testify that the substance at issue is in fact illegal marijuana (not medicinal or hemp), motions to dismiss should be granted. Trials would also take on a new complexion.
The appearance and smell of hemp and marijuana is very similar. To an un-trained eye, hemp could be mistaken for illegal marijuana. This issue may come up when determining the legality of a search of one’s vehicle. For example, where an officer claims the scent of fresh “marijuana” provided a basis to search someone’s car, that can be challenged on several fronts. First, the search could be voided as being unlawful if the officer did not first investigate as to whether the driver or occupants were medical marijuana patients. Additionally, a defense challenge to the lawfulness of the arrest could be filed where the search was not based on a determination by the officer that the alleged “scent” was in fact illegal marijuana and not hemp. That would be difficult.
Officers should also be required to differentiate between the smell of “burnt” versus “fresh” Marijuana. This is because the Medical Marijuana statute only prohibits smoking the legal marijuana in a vehicle, not possessing it in its “fresh” state.
While issues involving Marijuana based DUIs are a bit different (covered in a separate blog article), one thing is for sure—the landscape of Marijuana prosecutions will continue to change. And without careful investigations into the unlawful possession of Marijuana, many prosecutions may very well go “up in smoke”.
Criminal Defense Attorney Near Me
If you or a loved one has been charged with possession of marijuana or another criminal charge, hiring an experienced Jacksonville Criminal Defense Attorney is critical! Call us today to schedule your free consultation with attorney Lee Lockett.