On August 27, 2020, Florida legalized edible medical marijuana. This significant law broadens the THC options available to qualified patients as well as provides alternatives to smoking medical marijuana, which was legalized in 2019. THC is the psychoactive compound in cannabis (marijuana) that provides treatment benefits for patients suffering from certain medical conditions. It comes in various forms, including edibles, which are cannabis-infused foods and beverages.
Florida’s new edible medical marijuana law includes the following rules:
- No primary or bright colors in order to minimize attraction to children
- May come in the form of lozenges, gelatins, baked goods, chocolates and drink powders
- Can’t resemble any commercially available candy
- Must be packaged appropriately
- Tetrahydrocannabinol (THC) levels in edibles must not exceed 10 mg in single servings or 200 mg in multi-servings
Florida’s marijuana companies have been looking forward to this announcement. Florida leads the nation with over MMJ 400,000 patients.
Criminal Penalties for Possession of Edibles
Although edibles are now legal, things can go wrong if you are not a qualified patient and found in possession of edibles. Edibles are deemed “synthetic cannabinoids” that are only legal in Florida if a person is a qualified medical marijuana patient.
Florida drug possession penalties including the following charges:
- The first-degree felony is punishable by a $10,000 fine and/or up to 30 years in prison.
- A second-degree felony is punishable by a $10,000 fine and/or up to 15 years in prison.
- A third-degree felony is punishable by a $5,000 fine and/or up to 5 years in prison.
- The first-degree misdemeanor is punishable by a $1,000 fine and/or up to 1 year in jail.
Indeed, a conviction driving under the influence of THC, even medical cannabis, carries the same penalties as an alcohol-based conviction.
Impact of Marijuana Evidence in DUI Cases
Marijuana can stay in your system for up to 90 days depending on how much and how often you use it. Blood and saliva tests can detect it up to 72 hours after use, though marijuana can be detected in urine and hair for up to 90 days maximum. This means that if you smoked medical marijuana two days or even two months before your DUI arrest, your blood, urine and hair samples can produce a false-positive result.
Further, officers receive little training, if any, on detecting marijuana. If you got pulled over and your eyes were red and motor skills were lagging, an officer may assume you are high on marijuana even if you were simply tired after a long day. To best overcome these errors, many officers participate in drug recognition expert (DRE) training. This 72-hour course covers several topics.
- Determine if an individual is under the influence of a drug or drugs other than alcohol, the combined influence of alcohol and other drugs or suffering from an injury or illness that produces similar signs to alcohol/drug impairment
- Identify the broad category or categories of drugs that would induce the observable signs and symptoms of impairment
One of the issues with this 72-hour DRE training course is that it is only 72 hours long. Although the DRE field certification stage, the third and final stage of the process, lasts about 40 to 60 hours, that’s not enough time to learn and remember all the training on how to identify impaired drivers.
Additionally, even if an officer is a longtime DRE, every driver they encounter is different. Several factors may interfere with a driver’s impairment from marijuana, such as:
- Age
- Weight
- Gender
- Genetic makeup
- Underlying medical conditions
- Dosage
- Length of drug use
As a result, without knowledge of these above elements, an officer cannot accurately determine if a driver is impaired by marijuana, meaning they may make a DUI arrest solely based on their subjective opinions. A sober person with underlying medical conditions can show the same signs of impairment. Unfortunately, officers’ lack of quality DRE training may cause them to make false assumptions.
The bottom line is DRE training is not comprehensive enough to identify marijuana-impaired drivers.
One difficulty for the defense is that a medical marijuana patient is required to carry the medicine in its prescription container. Those labels are required to state the name of the patient, the contents, and the THC percentages of the medicine.
About the Author: Jonathan Blecher has been an attorney in Florida for over 38 years. A former Assistant State Attorney early in his career, Mr. Blecher is a member of the National College for DUI Defense, is AV-Rated, and has defended more than 5,000 DUI cases in Florida. He is a frequent lecturer on DUI topics to legal and civic groups, a former instructor at the Miami-Dade Police Academy, and a contributor to the DUI News Blog. You may contact Mr. Blecher through his website at www.duilawdefense.com, by email: duilawdefense@gmail.com or phone: 305.321.3237.
