Can an Out of State Medical Marijuana Verification Card or Prescription Be Used as a Defense to Possession of Marijuana in Florida?

In Florida, as in other regressive jurisdictions, possessing the marijuana plant is still a crime. The Florida government still asks taxpayers to pay a lot of money to support the arrests, prosecutions and incarcerations of people possessing this plant. Until it becomes legal to possess marijuana, either for medical reasons and/or recreationally, anyone caught with marijuana assumes the risk of going to jail and ending up with a damaging criminal conviction. In possession of pills cases, a defendant has a complete defense to the charge if he/she can establish that he/she has a valid prescription for the pills with which he/she was caught. This does not normally apply to marijuana cases because medical marijuana is not yet legal and there are no valid Florida prescriptions for marijuana.

However, what if a person in Florida has a valid medical marijuana prescription from another state? In a recent marijuana case near Jacksonville, Florida, the police responded to a disturbance at the home of the defendant and found marijuana inside. She was arrested for felony possession of marijuana. Her criminal defense lawyer defended the case by claiming that she had a valid prescription for marijuana from California. At a hearing on the defendant’s motion to dismiss the charges, the criminal defense attorney submitted her California medical marijuana verification card.

The court noted several problems with the defendant’s prescription defense. First and foremost, the medical marijuana verification card indicated it was issued three weeks after her arrest. That effectively ended her prescription defense. However, even if the card preexisted the arrest, the defendant did not establish that the marijuana was purchased pursuant to her prescription. The defendant did not show the equivalent of a pharmacy pill bottle which could connect the marijuana to the prescription.

In the United States Constitution, we have what is called the full faith and credit clause which basically says one state must recognize the acts, proceedings and judgments of another state. An obvious example is that a driver’s license obtained in Georgia allows a person to drive in Florida. However, this clause does not apply to all laws and may not apply to a defense to a criminal charge such as the one attempted in this case
At this point, it would be risky to possess marijuana in Florida and assume a valid out of state medical marijuana prescription would be a proper defense to possession of marijuana charges. At a minimum, the defendant would need to establish that the medical marijuana prescription was valid at the time of the arrest. The defendant would also need to establish that the marijuana possessed at the time of the arrest was legally purchased pursuant to that prescription. Once those two facts were established, it would likely be a legal argument between the criminal defense lawyer and the prosecutor as to whether the full faith and credit clause and the various criminal laws permit an out of state prescription to be used as a defense to a possession of marijuana charge in Florida.

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