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Is Possession of Marijuana Legal?

July 19, 2012
By The Wiseman Law Firm

There are 17 states along with the District of Columbia that have medical marijuana laws, but Florida is not among them. Despite efforts to get a medical marijuana resolution on the ballot, the Florida legislature has yet to vote on it. Consequently, possession of any amount of marijuana in Florida is a criminal offense.

Marijuana Possession Penalties

Many states have decriminalized possession of small amounts of marijuana with some deeming it a civil infraction for possession of an ounce or less. Florida treats possession more harshly and includes the following penalties:

  • Less than 20 grams: First degree misdemeanor and up to 1 year in jail, 1 years’ probation and fines up to $1000.
  • More than 20 grams: Third degree felony and up to 5 years in prison, 5 years’ probation and a $5000 fine.
  • 25 or more marijuana plants: Second degree felony punishable by up to prison 15 years in prison, 15 years of probation and a $10,000 fine.
  • Cultivating any amount of marijuana plants up to 25 pounds is a second degree felony punishable as set forth immediately above.
  • Trafficking offenses: Cultivating more than 25 pounds carries mandatory minimum prison sentences depending on the quantity.

Also, any drug possession conviction will result in suspension of your driver’s license for a minimum of 6 months and up to 2 years.

Medical Necessity Defense

You can use the defense of medical necessity in Florida. A number of defendants in Florida courts have successfully used this defense and been found not guilty and had their verdicts upheld on appeal. To establish the medical necessity defense, you must show the following:

  1. The defendant lacked control over the circumstances requiring the choice between the lesser of two evils;
  2. No less harmful alternative was available;
  3. The harm sought to be avoided was less offensive than the criminal acts committed to avoid it.

In most cases, you must have a medical condition that marijuana could be used to alleviate its symptoms or the side effects of treatment, which is recognized in the medical literature. Medical conditions would include cancer, severe chronic pain, AIDS, glaucoma, spinal cord injuries, multiple sclerosis, and some others. By showing that other legal medications were ineffective or harmful, you might be able to successfully challenge a marijuana possession charge. The testimony of your health care provider and possibly other medical experts may be needed. It also helps if you have no criminal record.

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