The pending legalization of medical marijuana in Florida raises many questions for lawyers practicing criminal defense in and around Gainesville, Florida like “Will the smell of marijuana in a vehicle, still allow an officer to conduct a warrantless search of that vehicle?” A good question, but one for another day.
How will Florida’s changing attitudes towards marijuana clash with the Department of Justice’s recently announced proclamation to prosecute the “most serious, readily provable” offenses? Check out this article here on the subject. This is a complicated question involving serious questions of state’s rights versus the power of the federal government to impose criminal sanctions that preempt state laws. But again, that is a question for another day.
Today’s issue is one that Glassman & Zissimopulos Law has already had to address for a client. The issue is how a person with a valid prescription from another state will be treated in Florida if they are caught with marijuana in this state.
To be perfectly honest, the answer is currently unclear. The best advice would be that a person who is in Florida should get a valid Florida license and prescription prior to possessing marijuana in this state.
With that having been said, Florida law does allow a person to bring a prescription defense at trial. (See State v. Latona, 75 So.3d 394 [Fla. 5th DCA 2011]).
Florida’s rules for medical marijuana possession (that are available thus far) can be found at Florida Health’s website. Unfortunately, these rules do not explicitly say that a valid prescription from another state will be honored or will not be honored.
Glassman & Zissimopulos Law has made a good argument that prescriptions from another state should be honored, especially since Florida Law includes prescriptions from another state in the statutory definition: Fla. Stat. Ann. § 465.003 (14). The definition reads as follows:
“‘Prescription’ includes any order for drugs or medicinal supplies written or transmitted by any means of communication by a duly licensed practitioner authorized by the laws of the state to prescribe such drugs or medicinal supplies and intended to be dispensed by a pharmacist. The term also includes an orally transmitted order by the lawfully designated agent of such practitioner. The term also includes an order written or transmitted by a practitioner licensed to practice in a jurisdiction other than this state, but only if the pharmacist called upon to dispense such order determines, in the exercise of her or his professional judgment, that the order is valid and necessary for the treatment of a chronic or recurrent illness. The term ‘prescription’ also includes a pharmacist’s order for a product selected from the formulary created pursuant to s. 465.186. Prescriptions may be retained in written form or the pharmacist may cause them to be recorded in a data processing system, provided that such order can be produced in printed form upon lawful request.”
One possible problem with the above analysis is that Florida appears to be considering marijuana possession to be a hybrid of a prescription and a license. Taking some guidance from Florida’s concealed weapon licensing process, it may take some time for the laws of Florida and other states to clearly outline how reciprocity will work between the states. This is especially true since some states currently allow both medicinal and recreational use of marijuana. License reciprocity laws constantly change.
As an example, Florida’s concealed weapon reciprocity laws are constantly updated on the Florida Department of Agriculture and Consumer Service website.
For now, the bottom line is if you want to avoid legal trouble with marijuana in Florida, keep updated on the changing laws and obtain valid prescriptions and licenses in Florida before possessing this substance in Florida. Of course, if you have questions about the current state of the law, the attorneys at Glassman & Zissimopulos Law are always available at PutClientsFirst.com or 352-505-4515.