Is marijuana possession still a crime in Florida?

Recreational marijuana is not legal in Florida. Cannabis is a controlled substance under chapter 893, and the only exceptions are the medical marijuana program in section 381.986 and hemp products that meet the limits of section 581.217. How Mr. Mead defends drug charges is on our drug offense defense page. The other charges he handles are under criminal defense.

How does a marijuana case usually move, step by step?

1. The stop. Many cases begin with a traffic stop or a search of a person or car. For cannabis possession, an officer may arrest without a warrant on probable cause (s. 893.13(6)(e)).
2. Arrest, notice to appear or citation. A misdemeanor may end with a court date rather than a trip to jail. For a child, a prearrest citation may be possible.
3. Weighing and testing. The amount and the form (plant material or concentrate) decide whether the charge is a misdemeanor or a felony.
4. Filing. Misdemeanor possession goes to county court, felony possession to circuit court.
5. Resolution. Diversion, dismissal, a plea or trial. A conviction also brings a driver license suspension under s. 322.055.

What does each marijuana charge carry?

The 20-gram misdemeanor rule applies only to plant material: for that subsection, "cannabis" does not include "the resin extracted from the plants" or anything made from it (s. 893.13(6)(b)). That is why a single THC vape cartridge can be charged as felony possession. Possessing 25 or more plants is prima facie evidence of intent to sell or distribute (s. 893.1351(4)). Other drugs and the general possession rules are covered in the penalties for drug possession in Florida. The trafficking weights are in how much of a drug makes it trafficking.

When is marijuana legal for a medical patient?

Section 381.986 lets a qualified patient, and a caregiver, buy marijuana and a delivery device from a licensed medical marijuana treatment center, up to the amount in the physician certification. The protections have firm limits:

• Source. Medical use does not include marijuana that was not purchased or acquired from a medical marijuana treatment center (s. 381.986(1)(k)1.). A patient who buys elsewhere or grows marijuana "violates s. 893.13" (s. 381.986(12)(d)).
• Amount and packaging. No more than a 70-day supply, or the greater of 4 ounces of smokable marijuana or a department-approved amount, and all marijuana must stay in its original packaging (s. 381.986(14)(a)).
• Place. Medical use does not include use in a vehicle, on public transportation, in a public place or at school, except for low-THC cannabis not in a form for smoking (s. 381.986(1)(k)5.). Using non-low-THC marijuana in plain view of the public or in a vehicle is a first-degree misdemeanor (s. 381.986(12)(c)).
• The card. A patient or caregiver who fails to show the registry identification card when an officer asks commits a second-degree misdemeanor, unless the registry confirms authorization; the charge must be dismissed if a card valid at the time of arrest is produced, and the clerk may charge a $5 fee for dismissing it (s. 381.986(12)(e)).

Florida issues registry identification cards to qualified patients and caregivers who are residents of this state (s. 381.986(7)(a)). Driving is a separate issue: a medical card is not a defense to impaired driving, as explained in a DUI for marijuana or prescription drugs.

What about hemp, CBD and delta-8 products?

Hemp is not "cannabis" under chapter 893 (s. 893.02(3)). Under s. 581.217, hemp means the plant and its derivatives with a total delta-9 THC concentration of no more than 0.3 percent on a dry-weight basis, and hemp extract may not exceed 0.3 percent total delta-9 THC on a wet-weight basis. Hemp extract may be sold in Florida only with a certificate of analysis from an independent testing laboratory and other listed requirements (s. 581.217(7)). A product that looks like hemp but exceeds the limit is treated as cannabis, which is why lab testing can decide these cases.

What changes the answer?

• Weight. 20 grams of plant material is the line between misdemeanor and felony (s. 893.13(6)(a), (b)).
• Form. Concentrates and resin are felonies at any amount (s. 893.13(6)(b)).
• Medical registration. A valid card and marijuana from a treatment center, in original packaging and within limits, is lawful (s. 381.986(14)(a)).
• Where it was. A medical patient still commits a misdemeanor by using in a vehicle or in public (s. 381.986(12)(c)).
• Hemp testing. A product within the 0.3 percent delta-9 THC limit is hemp, not cannabis (ss. 893.02(3), 581.217).
• Age. A first misdemeanor by a minor may qualify for a prearrest citation, explained in whether a child can get a civil citation instead of an arrest.

A worked example

For example, take a hypothetical 22-year-old stopped in Delray Beach with a small bag of flower weighing 12 grams and one THC vape cartridge, and no medical card. The flower alone would be first-degree misdemeanor possession under s. 893.13(6)(b). The cartridge contains resin-derived oil, which the 20-gram rule excludes, so it could be charged as third-degree felony possession under s. 893.13(6)(a). If she were a registered patient carrying products bought from a treatment center in their original packaging, the possession could be lawful; smoking in the car, however, would still be a misdemeanor under s. 381.986(12)(c). A conviction would also bring a 6-month license suspension, or until any required treatment is completed, under s. 322.055. This illustration is not a prediction for any case.

Common mistakes people make

• Assuming marijuana is legal in Florida because it is legal in another state.
• Treating a vape cartridge like a small amount of flower.
• Carrying medical marijuana outside its original packaging or bought from someone other than a treatment center.
• Using medical marijuana in a parked car.
• Consenting to a search without understanding the right to refuse.
• Ignoring the driver license consequence when deciding how to resolve the case.

What to do this week

1. Note the exact charge, the claimed weight and whether it was flower, concentrate or edible.
2. If you are a registered patient, gather your registry card and treatment center receipts.
3. Keep any hemp product labels or certificates of analysis.
4. Write down how the stop and search happened.
5. Ask a defense attorney about diversion before your first court date.

Frequently asked questions

Is a small amount of marijuana decriminalized in Florida?

Not under state law. Possessing 20 grams or less is a first-degree misdemeanor (s. 893.13(6)(b)). Adult civil citation programs, where they exist, are at police agencies' "sole discretion," as the Broward State Attorney notes.

Is a THC vape pen a felony in Florida?

It can be. The 20-gram misdemeanor does not cover resin or anything made from it, so a cartridge is generally charged under s. 893.13(6)(a), a third-degree felony, unless it is lawful medical use.

Can I smoke medical marijuana in my car if it is parked?

No. Medical use excludes use in a vehicle, and using non-low-THC marijuana in a vehicle is a first-degree misdemeanor (s. 381.986(1)(k)5., (12)(c)).

Will a marijuana conviction affect my license?

Yes. A drug conviction for a person 18 or older brings a 6-month suspension or a suspension until treatment is completed, with a narrow exception (s. 322.055).

Can a marijuana possession charge be diverted or sealed?

First-time cases are often considered for diversion; see pretrial diversion in Palm Beach and Broward. Possession is not on the list of offenses that can never be sealed; see our page on sealing and expunction eligibility.

Is delta-8 legal?

Hemp products are legal only within the definitions and testing rules of s. 581.217. Whether a particular product qualifies depends on its lab results and labeling.

How can Mr. Mead help?

Mr. Mead's practice is devoted entirely to criminal defense, with more than three decades in South Florida courts. In a marijuana case, the form, the weight, the search and any medical registration can change the charge entirely, so those facts deserve attention early. The office is in Boca Raton, Spanish and Portuguese are spoken, and you can call 24 hours.

Every case is different, and no result can be promised. If you are charged with marijuana possession, a confidential call to (561) 362-6677 is a sound first step.

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