Possession of Cannabis Concentrates in Florida

Florida law requires that your driver’s license be suspended for six months upon conviction.

Under Florida Statute 893.13(6)(a), it is a felony to possess any amount of THC, a cannabis concentrate, even if the total weight of the cannabis concentrate containing the THC is less than twenty (20) grams.

Cannabis concentrates are extracted from cannabis and contain a highly potent level of THC and come in many forms, such as cannabis wax, cannabis resin, cannabis oil, hashish oil, cannabis budder, and cannabis crumble. [1]

Penalties for Possession of Cannabis Concentrates

The crime of Possession of Cannabis Concentrates is a Third Degree Felony and punishable by up to five (5) years in prison, five (5) years of probation, and a $5,000 fine.

Possession of Cannabis Concentrates is assigned a Level 3 offense severity ranking under Florida’s Criminal Punishment Code and a judge may sentence a person convicted of Possession of Cannabis Concentrates to probation, but may also impose a sentence up to the statutory maximum of five years in prison.

Driver License Suspension

Pursuant to Florida Statute 322.055, any person convicted of Possession of Cannabis Concentrates will have their driver’s license or driving privilege suspended for six months by the Florida DHSMV.

Defenses to Cannabis Concentrates Possession

In addition to the pretrial defenses and trial defenses that can be raised in any criminal case, specific and common defenses to the crime of Possession of Cannabis Concentrates are:

• CBD Possession
• Constructive Possession
• Illegal Search and Seizure
• Lack of Knowledge
• Legal Disposal
• Medical Necessity
• Overdose Defense
• Prescription Defense
• Temporary Possession

Cannabidiol (CBD)

It is lawful to possess any CBD product that contains no more than 0.1 percent residual THC. [2]

Constructive Possession

If the cannabis was found in a place where more than one person had access, the prosecutor would have to comply with the law of constructive possession, which requires the prosecutor to prove the following two elements before you can be convicted of Possession of Cannabis Concentrates: [3]

1. Knowledge of the cannabis concentrates' presence;
2. Dominion and control over the cannabis concentrate, which means more than the mere ability to reach out and touch the cannabis concentrate. [4]

Below are scenarios where it can be argued the prosecutor could not meet their burden of proving constructive Possession of Cannabis Concentrates.

Scenario 1: You were stopped while driving a friend’s car and police found cannabis in the glove box, they would be unable to convict you of Possession of Marijuana unless they had some proof that you knew the cannabis was present.

Scenario 2: You were driving your car, had a friend with you, and your friend takes his personal stash of cannabis concentrate and places it at his feet. The police then stop you, see your friend’s stash, and arrest both of you. They should be unable to convict you of Possession of Cannabis Concentrates because even though you knew the marijuana was there, your friend is the only person who exercised dominion and control over it.

Illegal Search and Seizure

More often than not, law enforcement exceed the scope of their authority and require people to submit to a vehicle, home, or body search; or they may coerce a person into agreeing to a search. If we can prove that either instance occurred, the courts will suppress the resulting evidence as having been illegally obtained.

Other suppression possibilities that may present themselves are: if law enforcement obtained a search warrant in bad faith or if you were arrested without probable cause.

Lack of Knowledge

It is an affirmative defense to the crime of Possession of Cannabis Concentrates if you can prove that you did not know the substance in your possession was a cannabis concentrate. Importantly, this defense requires you to testify to your lack of knowledge of the substance’s illegal nature. [5]

Legal Disposal Defense

It is an affirmative defense to the charge of Possession of Cannabis Concentrates for a person to briefly possess cannabis concentrate without a prescription for the sole purpose of legally disposing of it. [6]

In order to raise a legal disposal defense, the cannabis concentrate must have been acquired without an unlawful intent, possessed for a brief period of time, solely for the purpose of disposing of the cannabis concentrate without delay.

Medical Necessity

The defense of medical necessity can be used when a person suffers from a physical illness or ailment for which there was no lawful medication available to properly treat the illness or ailment and cannabis was the only substance that could relieve the pain or suffering of the person. [7]

Overdose Defense

A person who is experiencing a drug-related overdose that needs medical assistance, or a person assisting the person that needs medical assistance, is immune from prosecution for Possession of Cannabis Concentrates if it can be shown the evidence was obtained as a result of the overdose and need for medical assistance. [8]

Prescription Defense

It is a defense to the crime of Possession of Cannabis Conentrates if the cannabis concentrate was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice. [9]

Importantly, the Prescription Defense is not only available to the cannabis concentrate prescription holder but also any individual authorized by the cannabis concentrate prescription holder to hold the medication on his or her behalf. [10]

Temporary Possession

The defense of temporary possession can be raised where a person takes momentary, temporary, or transitory possession of a cannabis concentrate from the true owner. Under such circumstances, the person is not considered to be in legal possession of the cannabis concentrate because the person never exercised complete dominion and control over the cannabis concentrate. [11]

Examples of temporary possession are when a person is handed a cannabis concentrate by the true owner and asked to hide it during a police encounter, such as a traffic stop; or when holding a cannabis concentrate in the presence of a drug dealer for the sole purpose of verifying or testing the cannabis concentrate prior to purchasing it; or when passing the cannabis concentrate from the owner to a third person.

Contact Criminal Defense Lawyer Richard Hornsby

If you have been charged or arrested with the crime of Possession of Cannabis Concentrates in Central Florida or the Greater Orlando area, contact Orlando Criminal Defense Lawyer Richard Hornsby today.

The initial consultation is free and I am always available to advise you on the proper course of action that can be taken.

References

1. Florida Statute 893.03(1)(c)(7) and (190)
2. Florida Statute 893.02(3) and Florida Statute 893.03(5)(d)
3. GG v. State, 84 So. 3d 1162 (Fla. 2nd DCA 2012)
4. Smith v. State, 123 So. 3d 656, 658 (Fla. 2d DCA 2013)
5. Florida Statute 893.101
6. Jenks v. State, 582 So. 2d 676 (Fla. 1st DCA 1991)
7. In re Std. Jury Ins. Crim. Cases, 141 So. 3d 132, 134 (Fla. 2013)
8. Florida Statute 893.21
9. Florida Statute 893.13(6)(a)
10. State v. Latona, 75 So. 3d 394 (Fla. 5th DCA 2011)
11. Campbell v. State, 577 So. 2d 932 (Fla. 1991)