Update: Effective on 7/1/19, the State Hemp Program (2019 CS/CS/SB 1020) took effect. Now that hemp is legal under Florida law, criminal defense attorneys are fighting marijuana / cannabis cases more aggressively.
Prosecutors are dropping charges because of bigger problems with the sniff / smell search, presumptive roadside tests for probable cause, or evidentiary problems with proving the THC level of the cannabis or marijuana (to distinguish it from legal hemp).
Read more about why hemp is now legal in Florida.
Although possession of cannabis is legal for recreational purposes in many states, Florida law still imposes harsh penalties for the possession of marijuana. If you are accused of possessing less than 20 grams of marijuana in its green leafy form, then the crime is charged as a first-degree misdemeanor.
In the past few years, more prosecutions across the Tampa Bay area involve concentrated forms of marijuana including oils, wax, vape, resin, and hash.
Crimes for possessing these concentrated forms of cannabis are charged as a third-degree felony. Crimes of concentrated forms of marijuana are often written up as “possession of cannabis sativa resin” or “marijuana – possess cannabis oil, wax, resin.”
Keep in mind that any form of marijuana concentrate can be charged as a felony. Possession of CBD (cannabidiol) hemp oil should not be prosecuted because it is non-psychoactive and contains only trace amounts of tetrahydrocannabinol (THC). CBD hemp oil is packaged as capsules, tinctures, liquids, pastes, suppositories, pure oils, creams, or topical ointments.
Another part of the problem is that CBD contains some small percentage of THC which is impossible to remove entirely. Depending on the source, the percentage will vary between approximately 3-10%. For this reason, if a person uses CBD, then the lab report will often show some carboxy-THC metabolite which depends on how much the person has used, timing issues, and the CBD preparation itself.
Other types of marijuana oils that are high in THC can be prosecuted as a felony offense. High TCH concentrates can be packages as vape, vaporizer cartridges, vaporizer pens, glass droppers, cannabis oil syringes, wax, shatter, extracts, rosin, shook crumble, or dab cannabis concentrates.
Officers in the City of Tampa can issue civil citations for marijuana possession, but those procedures are only being used about half the time. The other half of the time, TPD is still arresting people for possession of marijuana, a first-degree misdemeanor under state law. For any form of concentrated THC, the officers are still making an arrest for a felony.
The best defense against a prosecution for marijuana requires fighting the charges aggressively and filing all viable motions to suppress or motions to dismiss. If you use marijuana for medical purposes, talk with your attorney about the best ways to assert a medical necessity defense with the goal of getting the charges dismissed.
Being arrested for a cannabis charge does not necessarily mean that the prosecutor will file formal charges or that the case will be successfully prosecuted.
Attorneys for Marijuana Crimes in Tampa, FL
The attorneys at Sammis Law Firm fight marijuana cases aggressively. Our attorneys can help you understand the best strategy for fighting your charges.
We represent clients throughout the greater Tampa Bay area including Hillsborough County, Hernando County, Pasco County, Pinellas County, or Polk County, Florida.
Our main office is in downtown Tampa in Hillsborough County. Our second office is located in New Port Richey in Pasco County across from the West Pasco Judicial Center.
The partners in the firm are both members of the National Legal Committee (NLC), a legal advisory committee to the National Organization for the Reform of Marijuana Laws (NORML). Being active on NORML’s National Legal Committee allows us to support NORML, advocate for the reform of marijuana laws, and network with attorneys throughout the country fighting similar battles.
Our attorneys are proud to aggressively defend our clients charged with possession and other related marijuana offenses. Call (813) 250-0500 today.
A conviction for any drug offense
(including misdemeanor possession of marijuana)
will result in an automatic and immediate
two (2) year suspension of your driver’s license
regardless of whether the crime was driving-related.
Possible Issues for Motions to Suppress or Exclude
In any drug case, including possession of marijuana (also known as cannabis, weed, or pot), there are important defenses that can be asserted through motions to suppress illegally obtained evidence or motions to dismiss the charges for insufficient evidence.
These defenses can also apply to more serious marijuana felony offenses such as:
- cultivation or producing marijuana;
- possession or use of cultivation materials;
- production or possession of a structure or vehicle for drug manufacturing;
- possession with intent to sell; and
- manufacture or delivery of cannabis.
Your marijuana defense attorney will investigate your case to determine:
- Can the prosecutor prove that you were in constructive possession, or did the cannabis belong to someone else?
- Did the police have legal cause to stop your vehicle, ask you to exit the vehicle, conduct a pat down of your person, or perform a search of your vehicle?
- Did the police have legal grounds to search your person, vehicle, or residence?
- Were your rights violated in the execution of a search warrant?
- Were your rights violated in the execution of an arrest warrant, and seizure of evidence as a result of that arrest warrant?
- Did the police have probable cause to arrest you for the offense of possession or sale of marijuana?
- Did the police have sufficient evidence to charge you with possession with “intent to sell” or did they just trump up the charges?
- Was the marijuana or cannabis within plain view or easy reach?
- Were you were entrapped by the police through the use of an undercover officer or a confidential informant?
- Did the police read your Miranda warnings to you before conducting an interrogation?
- Is there sufficient evidence to prosecute the case?
- Can the prosecutor prove that you knew the marijuana was in your home or vehicle?
- Can the prosecutor prove that you knew the illicit nature of the marijuana in your constructive possession?
- Can the “necessity defense” recognized by Florida law be used in your case if your use or possession of marijuana was necessary for medical purposes?
Consequences of a Marijuana Conviction in Florida
After an arrest, you must worry about the potential penalties that can be imposed by the court if you do not fight your case appropriately. You should also consider the indirect consequences that a conviction for any misdemeanor or felony marijuana crime might have including the following:
- Ineligibility for public employment without enrolling in a drug treatment program for any conviction;
- Ineligibility for Florida Bright Futures scholarships;
- Ineligibility for State financial aid;
- Ineligibility for state licenses, permits or certifications without enrolling in a drug treatment program for any felony conviction;
- A potential three-year ban on public housing for any misdemeanor or felony conviction;
- A five-year ban on eligibility to adopt a child or become a foster parent, and even after the ban is lifted you will have to submit to a special review by an adoption review committee if you have any felony or misdemeanor marijuana conviction; or
- A lifetime ban on the right to possess a firearm under Florida Statute Section 790.23 for any felony conviction.
Whether you have been charged with marijuana possession, cannabis manufacture or cultivation, distribution, transportation, trafficking, or possession of drug paraphernalia, contact an experienced marijuana criminal defense attorney to discuss your case in the Tampa Bay area.
We represent clients in marijuana crimes in Tampa, Hillsborough County, Clearwater or St. Petersburg, Pinellas County, New Port Richey or Dade City, Pasco County, or Brooksville, Hernando County, Florida.
Why is Marijuana Still on Schedule I in Florida?
Cannabis sativa L., is a plant with an odd number of leaves, usually five to thirteen. The leaves of a marijuana plant are long, slender, pointed at both ends. The leaves have a saw-toothed edge. The female of the species contains the high-inducing resin.
Marijuana is prepared from the tops and leaves of the plant after they are dried.
In Florida, marijuana is listed as a Schedule I controlled substance in section 893.03(1)(c)(7). Florida courts have interpreted marijuana to be a dangerous drug and that “the health hazards of cannabis justify its proscription” and classification in Schedule I. Hamilton v. State, 366 So. 2d 8, 10 (Fla. 1978); see also Watkins v. State, 701 So. 2d 592, 593 (Fla. 1st DCA 1997).
Section 893.03(1), Florida Statutes (2016), provides that “[a] substance in Schedule I has a high potential for abuse and has no currently accepted medical use in treatment in the United States and in its use under medical supervision does not meet accepted safety standards.”
Despite recent decriminalization and sanctioned use of medical marijuana in many states, including Florida, marijuana is still defined as a Schedule I controlled substance under both Florida and federal law. The “medical use of marijuana” was recently approved as a state constitutional amendment by Florida’s voters. See Art. X, § 29, Fla. Const.
The amendment allows for “the medical use of marijuana by a qualifying patient or caregiver” and such persons “in compliance with this section [are] not subject to criminal or civil liability or sanctions under Florida Law.”
The amendment also outlines what debilitating medical conditions qualify a patient for medical marijuana and the various stipulations for caregivers and physicians. Importantly, the amendment provides that “[n]othing in this section allows for a violation of any law other than for conduct in compliance with the provisions of this section” and “[n]othing in this section shall affect or repeal laws relating to non-medical use, possession, production, or sale of marijuana.” Art. X, § 29(c)(1)-(2), Fla. Const.
So how can the constitutional amendment allowing for the medical use of marijuana be reconciled with the Schedule I’s requirement that the drug has no currently accepted medical use in treatment in the United States?
The courts in Florida have found that the classification of marijuana is an issue for the legislature, not the courts, to decide. For example, in the United States District Court in Florida, a District Judge in the Middle District of Florida held that “[t]he determination of whether new evidence regarding either the medical use of marijuana or the drug’s potential for abuse should result in reclassification of marijuana is a matter for legislative or administrative, not judicial, judgment.” United States v. Inzer, 2015 WL 3404672 at *4 (M.D. Fla. May 26, 2015).
The court in Inzer found that the scheduling of controlled substances requires the consideration of a wide variety of interests and circumstances better suited for legislative determination.
Overview of Possession of Marijuana / Cannabis Charges and Penalties
· Possession of Less than 20 grams of marijuana
· First Offense for Possession of Marijuana
· Drivers License Suspension in Florida for any drug offense, including marijuana
· Misdemeanor Offenses for Marijuana
· Felony Offenses for Cannabis
· Federal Law Regarding Marijuana / Cannabis
Marijuana (also known as cannabis, weed or pot) is the most commonly used illicit drug in the State of Florida and the United States. The simple possession of marijuana / cannabis is a misdemeanor that carries a sentence of up to 12 months in jail.
Despite the fact that marijuana use is common, the penalties for possession of marijuana are harsh. Regardless of whether adjudication is withheld or not, a possession of marijuana / cannabis sentence can haunt you even after you have finished serving the probationary term in Florida.
Even for a first offense of possession of cannabis, prosecutors typically ask for a diversion program which is very similar to probation. A second offense often results in 12 months probation, a series of random urine screens, community service hours, and court costs and fines.
Many people charged with possession of marijuana do not realize how expensive and time-consuming it will be to complete the diversion or probationary terms. In those cases where all of the conditions are not met within the time allotted, a violation of probation will result in an arrest warrant being issued, possibly without a bond amount being set.
If you are convicted of possession of marijuana / cannabis, Florida Statute 322.055 requires the court to send in paperwork to the DHSMV that will automatically trigger an immediate twelve (12) month revocation of your driver’s license.
If the court withholds adjudication, the suspension of your driver’s license can be avoided. However, even for first offenses, prosecutors routinely ask for harsh penalties for possession of marijuana / cannabis cases included 12 months probation, a drug and alcohol evaluation, completion of any follow-up drug treatment (typically 8 drug classes), random urine screens, community service, and steep fines and court costs.
If you agree to this type of harsh probation sentence and then violate the probation, the court can then “adjudicate” you of the underlying possession of marijuana charge (which then triggers the DHSMV to enter the 12-month revocation of your driver’s license).
Section 322.055(1) requires the defendant to go through rehabilitation program before having his license reinstated unless the court orders DHSMV to issue a BPO license (as defined in Section 322. 271).
Section 322.271 requires an individual to take a substance abuse education class prior to obtaining a BPO license. Department of Highway Safety and Motor Vehicles v. Litsch, 664 So.2d 25 (Fla. 4th DCA 1995).
The trial court is not authorized to suspend a driver’s license as part of probation under section 948.01(3)(a) and 322.055(1). It must direct the DHSMV “to revoke appellant’s driving privilege for a period of two years. Alternatively, the trial court may order as a condition of probation, that [defendant] not drive a motor vehicle for a period of two years.” Martin v. State, 618 So.2d 737 (Fla. 1st DCA 1993).
Overview of the Marijuana Laws in Florida
Misdemeanor Offenses for Marijuana under Florida Law
- Possession of Marijuana / Cannabis Less than 20 grams – First Degree Misdemeanor punishable by a $1,000 fine and up to 12 months in the county jail. If you are adjudicated guilty of the offense, then your driver’s license will be automatically and immediately suspended for two years.
- Delivery of Marijuana / Cannabis Less than 20 grams (without monetary exchange) – First Degree Misdemeanor punishable by a $1,000 fine and up to 12 months in the county jail. If you are adjudicated guilty of the offense, then your driver’s license will be automatically and immediately suspended for two years.
- Possession of Drug Paraphernalia (including marijuana pipes, bongs, and roach clips) – First Degree Misdemeanor punishable by a $1,000 fine and up to 12 months in the county jail. No automatic consequence to your driver’s license.
Use our website to find out more about the different ways that marijuana crimes can be charged under Florida law including:
- Possession of Marijuana / Cannabis more than 20 grams – Third Degree Felony punishable by a $5,000 fine and up to five (5) years in Florida State Prison. If you are adjudicated guilty of the offense, then your driver’s license will be automatically and immediately suspended for two years.
- Possession or Use of Drug Equipment for Marijuana Cultivation – Charged under 893.147(1), it is a crime to possess cultivation material such as sodium vapor, growing materials, bong, sheers, etc.
- Cultivation of Marijuana – Under Florida law, Section 893.13(1)(a) governs the offense of cultivation of marijuana, which is a third-degree felony punishable by up to five years in Florida State Prison. The offense is often listed on the criminal report affidavit as Marijuana Producing Schedule I – Cultivation under 893.13(1)(a)2.
- Produce / Possess Structure or Vehicle for Drug Manufacturing – A felony charged under 893.1351(2) includes allegations of renting a property for purposes of cultivation.
- Possession of Marijuana with the Intent to Sell, Manufacture or Deliver Schedule I Cannabis – A felony charged under 893.13(1)(a)(2) which including allegations of operation a grow house.
- Trafficking in Cannabis/ Marijuana less than 25 pounds – Third Degree Felony punishable by a $5,000 fine and up to five (5) years in Florida State Prison. If you are adjudicated guilty of the offense, then your driver’s license will be automatically and immediately suspended for two years.
- Trafficking of Marijuana / Cannabis 25 – 2,000 pounds (or 300 – 2,000 plants) – Second Degree Felony punishable by a $25,000 fine and up to fifteen (15) years in Florida State Prison. The offense carries with it a minimum mandatory three (3) year prison sentence. If you are adjudicated guilty of the offense, then your driver’s license will be automatically and immediately suspended for two years.
- Trafficking of Marijuana /Cannabis 2,000 – 10,000 pounds (2,000 to 10,000 plants) – First Degree Felony punishable by a $50,000 fine and up to 30 years in Florida State Prison. The offense carries with it a minimum mandatory seven (7) year prison sentence.
- Trafficking of Marijuana / Cannabis 10,000 or more pounds (or 10,000 plants) – First Degree Felony punishable by a $200,000 fine and up to 30 years in Florida State Prison. The offense carries with it a minimum mandatory fifteen (15) year prison sentence.
- Trafficking of Marijuana / Cannabis near a designated location – Second Degree Felony punishable by a $10,000 fine and up to 15 years in prison. Designated locations are those marijuana or cannabis offenses that take place within one-thousand (1,000) feet of a child care facility, school, college, university, church, convenience store or business, park, community center or public recreational facility.
New Florida Law for Marijuana Grow House
Under the recently passes “Marijuana Grow House Eradication Act” (HB173/SB390), now Florida Statute Section 893.1351, a “grow house” can include any place where 25 plants or more are present because the statute provides a presumption that “[f]or the purposes of this section, proof of the possession of 25 or more cannabis plants constitutes prima facie evidence that the cannabis is intended for sale or distribution.”
In Florida, this criminal offense is often called “Possession of a Residence for Cultivating of Cannabis” in Tampa or Plant City in Hillsborough County, in St. Petersburg or Clearwater in Pinellas County in Dade City or New Port Richey for Pasco County, Florida.
In fact, in a trial on the issue, the jury will be instructed on this “rebuttable presumption.” This rebuttable presumption could be overcome with evidence that the cannabis plants were not intended for sale or distribution, especially when it can be shown that the plants were being grown for personal consumption, including personal medical purposes.
Landlord of Cannabis Grow House
Subsection (1) makes it a third-degree felony (punishable by 5 years in Florida State Prison) to own, lease or rent any grow house or other place with knowledge that the place will be used for one of the following purposes:
- Trafficking in marijuana as provided in section 893.135;
- For the Sale of marijuana, as provided in Section 893.13; or
- For the manufacture of cannabis intended for sale or distribution to another (presumed if 25 or more cannabis plants).
Resident of Marijuana Grow House
Subsection (2) makes it a second-degree felony (punishable by 15 years in Florida State Prison), to knowingly be in actual or constructive possession of any grow house or other place with the knowledge that the place will be used for any of the following purposes:
- Trafficking in marijuana, as provided in s. 893.135;
- For the sale of marijuana, as provided in s. 893.13; or
- For the manufacture of cannabis intended for sale or distribution to another (presumed if 25 or more marijuana plants).
Resident of Marijuana Grow House when Minor Child is Present
Subsection (3) makes it a first-degree felony (punishable by 30 years in Florida State Prison) for any person who is in actual or constructive possession of a grow house or other place with the knowledge of the following:
- That the place is being used to manufacture marijuana intended for sale or distribution to another (presumed if 25 or more cannabis plants are present); and
- Who knew or should have known that a minor child is present or resides in the place.
Effect of New Cannabis Grow House Legislation
The State of Florida has some of the harshest marijuana possession laws in the country. In 2008 the Florida Legislature passed, and Governor Charlie Crist signed into law legislation that makes the possession or cultivation of just 25 marijuana plants prima facie evidence of an “intent to sale or distribute” which is a second-degree felony punishable by 15 years in Florida State Prison.
Florida law previously provided that punishment only if 300 or more plants were grown in the home. Federal trafficking laws require at least 100 plants, making the new Florida legislation considerably harsher than even federal law. If children were present in the home where 25 or more plants are cultivated, then the offense can be charged as a first-degree felony punishable by thirty (30) years in Florida State Prison.
The law was intended to target cannabis “grow houses.” These grow houses have become a prized target for Florida law enforcement officers who can not only make the arrest but can then attempt either criminal or civil forfeiture the house and property where the marijuana was grown under state or federal asset forfeiture procedures.
The new marijuana trafficking law also targets the owners of the “grow house” if the owner knew the house was being used for the purpose of distributing, packaging, growing, or cultivating marijuana as a third-degree felony.
Under Florida law, a marijuana plant is broadly defined to include even a seedling or cutting if there is any evidence of root formation, even if only a few tiny hair-like roots are present.
Attempting asset forfeiture actions of “grow houses” in Florida, especially before the housing market crashed in 2007 wiped out much of the equity in these assets, lured many law enforcement agencies to go after the big potential payoff.
As law enforcement agencies shifted their attention away from individuals trafficking more dangerous drugs such as meth, cocaine, and heroin, common sense and good police work gave way to the targeting individuals growing small amounts of marijuana.
Federal Law Regarding Marijuana Possession
The Federal Government prosecutes drug crimes through the Controlled Substances Act (21 U.S.C. Section 811), which treats marijuana or cannabis like any other controlled substance, including heroin or cocaine. Marijuana is classified as a Schedule I drug, which means that marijuana is classified as being a dangerous illegal drug which is “highly addictive.”
Federal law criminalizes the possession, distribution or cultivation of large quantities of cannabis. Under Federal Sentencing Guidelines, the quantity of marijuana / cannabis is considered along with the defendant’s criminal record. Any conviction for marijuana under Federal Law is eligible for a prison term. Also, federal marijuana laws impose certain statutory mandatory minimum sentences.
For example, a conviction for the cultivation of 100 or more plants or possession of 100-kilograms requires a five (5) year mandatory minimum sentence. If the defendant has any prior drug convictions or sentences, including sentences under state law, a ten (10) year statutory mandatory minimum sentence would apply.
Under the federal Controlled Substance Act, the possession of marijuana or cannabis is illegal. The federal authorities are usually interested in prosecuting cannabis offenses only when they involve larger quantities of marijuana by drug traffickers (e.g., large amounts of hash oil or hashish, or the cultivation of more than one hundred plants).
How is a Marijuana Field Test (Narc Test) Conducted?
In order to perform the Narc Test Kit test, the item being tested must first have been seized as contraband. Once seized, typically, a portion of the contraband is tested to provide an indication of the identity of the substance. The substance, when dropped into a vile of reacting agent, caused the reacting agent to change colors.
Can the officer testify about the opinion based on how the reacting agent changed colors? Is the opinion admissible as lay witness testimony or expert witness testimony? If a “color change” opinion is admissible as “expert witness testimony,” it must then be determined if a Daubert analysis is necessary.
Can the Officer Identify the Substance as Marijuana?
In many cases, the prosecutor never sends the substance seized off to the crime lab to determine whether it is actually marijuana or not. In other cases, the prosecutor has a lab report but doesn’t intend to call the lab analyst at trial.
In these cases, can the prosecutor just have the officer identify the substance seized as marijuana? The criminal defense attorneys in these cases will bring a “Daubert” challenge or other objections when the officer tries to offer this kind of testimony.
As a preliminary matter, the prosecutor has to lay a foundation for the testimony. For instance, the officer might testify about how he first came into contact with marijuana, how the officer is familiar with the unique characteristics of marijuana including its odor, training the officer received at the academy or on the job, special drug detection training, the number of cannabis cases the officer was involved with, the number of times the officer has arrested someone for possession of marijuana crimes, and the number of time the officer suspected marijuana and the substance was confirmed by FDLE as marijuana.
DEA’s Position on Marijuana – Drug Enforcement Agency (DEA) website includes a page on marijuana including description and overview, control status, street names of cannabis, short-term and long-term effects of marijuana abuse, arrests and sentencing, DEA drug seizures and treatment resources.
InfoFacts: Marijuana – National Institute on Drug Abuse provides the often cited information, facts, and statistics on marijuana abuse.
Marijuana Website Design – Information for other criminal defense attorneys who are members of the NORML Legal Committee on internet marketing for marijuana and cannabis defense.
Choosing a Criminal Defense Attorney for Marijuana Possession
Although the use and possession of marijuana are common in Florida, the punishments are particularly harsh. The mere possession of marijuana (aka cannabis, pot, weed) is a misdemeanor punishable by up to 12 months in jail and a 12-month revocation of your driver’s license.
If you are found in possession of any concentrated form of cannabis, then you can be charged with a third degree felony for possession of “cannabis sativa resin” or CBD (cannabidiol) hemp oil containing only trace amounts of tetrahydrocannabinol (THC) which is non-psychoactive.
We also represent clients charged with possession of other types of marijuana concentrates which are high in THC including wax, shatter, vape, vaporizer pens, glass droppers, cannabis oil syringes, extracts, rosin, shook crumble, dab cannabis concentrates, pure oils, creams, capsules, tinctures, liquids, pastes, suppositories, or topical ointments.
Our attorneys also represent patients businesses, licensed dispensing organizations, and physicians dealing with the new rules for medical marijuana businesses in Florida. We also represent physicians that recommend low-THC or high-THC cannabis in the State of Florida and medical marijuana patients with an active Physician’s Certification and Identification Card.
Our attorneys are also involved in helping those involved in the medical marijuana industry in Florida to stay in compliance with the maze of regulations being introduced by the Florida Department of Health’s Office of Compassionate Use (OCU).
As members of the NORML Legal Committee, we work with attorneys across the country fighting similar battles to protect individuals charged with a marijuana offense. We represent individuals charged with marijuana offenses from possession, possession with intent to sell, manufacture of cannabis, cultivation of marijuana, operating a marijuana grow house to trafficking in cannabis.
With offices conveniently located in downtown Tampa, FL, contact us by calling (813) 250-0500 to speak with a criminal defense attorney about your case.
This article was last updated on Wednesday, September 17, 2019.