Voters in Florida recently passed an amendment to the Florida Constitution, known as the Florida Medical Marijuana Legalization Initiative, legalizing medical marijuana within the state. Medical marijuana is no different in substance from traditional marijuana, it is merely used for medicinal treatment purposes while under the care of a health professional. Advocates in favor of the legalization of medical marijuana believe it can relieve the symptoms and pain associated with a wide range of medical conditions. Despite this recent change in Florida Law, the possession, sale, and trafficking of marijuana for purposes not within the medical exception remains illegal.

If an individual is stopped by law enforcement for a traffic violation while in possession of marijuana and explains he has it because he’s sick or has a condition he feels marijuana provides therapeutic benefits for, can he face criminal liability? Yes.

Under current Florida Statute § 893.13, possession of marijuana is a first-degree misdemeanor punishable up to one (1) year of jail and a fine for less than twenty grams. Possession of more than twenty grams up to twenty-five pounds, or less than 300 plants, is punishable by up to five (5) years in jail and a fine. Possession of twenty-five pounds or more is considered trafficking, a first-degree felony. Sentencing guidelines for trafficking require mandatory fines from $25,000 up to $200,000 and jail sentences from three (3) years up to fifteen (15) years.

Under federal law, specifically the Controlled Substance Act, the possession and sale of marijuana remains illegal. While states have begun passing laws legalizing marijuana, including the recent medical marijuana amendment passed in Florida, the federal law criminalizing marijuana is controlling over those laws and can be enforced against individuals who are within compliance of the respective state laws. Under the United States Constitution, the states do not have authority to essentially change or bypass a federal law by passing a state law that contradicts the federal law. Under the prior presidential administration, the enforcement of the federal law criminalizing marijuana was relaxed and prosecution of individuals under the federal law discouraged.

However, under Florida law, possession, sale and trafficking of marijuana is still illegal and punishable by fines and jail time.