Drug Crimes

Can I Be Charged With Possession Of Drug Paraphernalia If I Have A Florida Medical Marijuana License?

By
Gregory Salnick
on
May 27, 2019

The legalization of medical marijuana has opened questions about the permitted use of certain types of drug paraphernalia, which is prohibited by Florida law. The question is whether medical marijuana users and those on the Compassionate Use Registry may use prohibited marijuana paraphernalia to ingest, smoke, or vape their cannabis medication.

Florida is one of just a few states that recently legalized the use of medicinal marijuana for patients with certain debilitating illnesses. Under the recent Florida Medical Marijuana Legalization Initiative, or Amendment 2, Floridians are permitted to use medical cannabis to treat and soothe certain qualifying conditions. A few of these conditions include HIV/AIDS, Post Traumatic Stress Disorder, Parkinson’s Disease, chronic seizures, terminal illnesses, epilepsy, chronic nonmalignant pain, cancer, and Crohn’s Disease.

Under the new law, patients who obtain a doctor’s recommendation may legally obtain a 70-day supply of medical cannabis provided by a state-licensed dispensary. The State currently has six dispensaries, all of which are approved and licensed by the State Department of Health. Patients who’ve been authorized by a physician to use medical cannabis are placed on a Compassionate Use Registry and distinguished from those who are using marijuana for illegal recreational purposes.

The legalization of medical marijuana has opened questions about the permitted use of certain types of drug paraphernalia, which is prohibited by Florida law. The question is whether medical marijuana users and those on the Compassionate Use Registry may use prohibited marijuana paraphernalia to ingest, smoke, or vape their cannabis medication.

The Laws on Marijuana Paraphernalia Possession and Use

What is Paraphernalia?

Under Florida law, paraphernalia is defined as any object or material intended for the production, use, or processing of a controlled substance, like marijuana. Some examples of commonly-used paraphernalia include syringes, rolling papers, cutting devices, pipes, vials, and scales. Other types include the following:

  • Hypodermic syringes, needles, and other objects used to inject controlled substances into the body;
  • Containers and other objects used in storing, concealing, or transporting controlled substances;
  • Scales and balances used to weigh or measure;
  • Rolling papers, cutting devices, testing devices, balloons, and baggies;
  • Blenders, bowls, containers, spoons, and mixing devices used to compound controlled substances;
  • Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes;
  • Clips, bongs, and vials;
  • Permanent screens, hashish heads, or punctured metal bowls; and
  • Water pipes, smoking and carburetion masks, and other types of air-driven pipes.

In short, patients who are prescribed medical marijuana do not have free reign to use any and all of these types of paraphernalia and may still face charges and penalties if they do so. The law imposes restrictions on how patients on the Compassionate Use Registry may ingest and use their prescribed medical marijuana. Patients may only use paraphernalia that is connected to the following permitted uses.

The Limits of Marijuana Use and Paraphernalia

The law’s scope is limited severely to oils, sprays, tinctures, edibles, and vaping. Vape pods and flowers are permitted, but must be contained in tamper-resistant containers. Other forms of ingesting and using cannabis are strictly prohibited - along with the paraphernalia used for those particular forms.

Smoking Medicinal Cannabis

Chief among the prohibited uses of medical cannabis and paraphernalia is smoking. Generally, smoking medical marijuana is prohibited. Legislators deliberately excluded it from the Legalization Initiative for fear that it would create a slippery slope that led straight to increased recreational use.

However, under Florida law, qualified patients are permitted to possess up to four ounces of herbal cannabis and may smoke it, but ONLY if a recommending physician states that the health benefits of smoking outweigh its risks.

Marijuana Flower Products and Other Tools

Certain marijuana flower products are prohibited unless they are contained in tamper-resistant containers. Additionally, pre-rolled joints and blunts are not prohibited, with the narrow exceptions stated above. Patients may not use - or sell - any of these prohibited products.

Penalties Attached to Unauthorized Drug Paraphernalia

The knowing and willing possession, sale, or use of drug paraphernalia is a first degree misdemeanor in Florida. Penalties may include up to 365 days in prison, 12 months probation, and/or a $1,000 fine. If you’re placed on probation, you will likely be ordered to submit to a random drug test and enrolled in a drug evaluation program.

Often, paraphernalia possession will also be charged with other possession offenses, like possession of other drugs or possessing a controlled substance with the intent to sell.

How to Determine Possession of Drug Paraphernalia

Possession may be either actual or constructive. Actual possession means that you had the materials on your person or in your hand, or within ready reach and under your control. On the other hand, constructive possession means that the materials were not on your person, but you kept them in a concealed place or otherwise asserted and maintained control over them. A prosecutor may charge you with either or both types of possession.

Defenses to Possession of Drug Paraphernalia

Your defense attorney can challenge your possession charge in a variety of ways. The most common defenses to possession are challenging the legality of the search and seizure that led to the discovery of the materials (this will result in a Motion to Suppress), or challenging the assertion that you actually or constructively possessed the paraphernalia. The first approach involves precluding the paraphernalia from being introduced at trial, as it was discovered and taken from your person in an unconstitutional manner. The second approach involves invalidating a key element of the crime: possession.

Hiring A Drug Paraphernalia Possession Lawyer

If you’ve been charged with possession of paraphernalia - whether related to medicinal or recreational use of marijuana - our West Palm Beach Criminal Defense Lawyers can help. We will consider and weigh all of the facts of your case and if needed, we will vigorously represent your interests in a court of law. We are well-equipped to craft a strong defense on your behalf and will advise you of your rights.

Contact the West Palm Beach criminal defense attorneys at Salnick & Fuchs, P.A. today to schedule a consultation.


Gregory Salnick

Mr. Salnick began his legal career at the Palm Beach County State Attorney’s Office where he prosecuted over 90 jury trials, ranging from DUI to murder, armed robbery and drug trafficking. Mr. Salnick quickly gained a reputation as a tenacious and ethical attorney at law. Mr. Salnick now serves as state and federal criminal defense attorney at Salnick & Fuchs, P.A.

Call Greg Salnick today at
561-471-1000