The medical marijuana amendment has made it to Florida’s ballot in time for the next governor’s election. Voter polls currently indicate that the amendment will pass easily and medical marijuana will become legal in the state of Florida. How will this affect criminal cases? The potential effect on the police, when law enforcement can search a person (or their vehicle), and to possession of cannabis cases could be dramatic.
Currently, a police officer or deputy with the proper training can search a person or vehicle if he smells the odor of marijuana. This gives the officer probable cause to search the vehicle for marijuana. This includes containers in the vehicle that may contain the pot. This is a tremendous tool for law enforcement that has led to numerous arrests for possession of cannabis, both felonies and misdemeanors. In addition, the odor of marijuana has also been used by police to discover evidence of other crimes. For example, a Polk deputy may pull a driver over for allegedly speeding, smell the odor of pot, and then search the car. The deputy may not find any cannabis, but the trafficking amount of cocaine or meth he discovers in the vehicle will have been lawfully obtained and the occupants can be charged with a serious felony and face a long, mandatory prison sentence.
If the Medical Marijuana Amendment passes and becomes law, the legal issue becomes whether the odor of marijuana gives an officer probable cause to search a vehicle or whether it is a defense to have a prescription or an affirmative defense to the crime. Once marijuana is legal, the officer may not know whether an individual has a prescription or not. Without this knowledge, the odor alone may not be probable cause of a crime because possessing cannabis is no longer illegal in Florida (for limited purposes). Thus, there is no evidence of a crime because it is the odor of marijuana no longer indicates an illegal activity. This will be an issue that criminal defense attorneys raise and will probably work its way through the appellate courts for an answer. However, because marijuana is still a controlled substance, making the distribution of marijuana a federal crime, that could make the search legal. Only time and litigation will tell how medical marijuana will affect criminal prosecutions.
We will probably see more Driving Under the Influence of Drug (DUID) arrests and prosecutions also. This is already happening throughout the United States. As more people have access to the drug, there are likely to be more arrests for driving under the influence of cannabis. Draeger © has now produced a roadside machine to test for controlled substances. Draeger’s © website touts their machine can “The Dräger DrugTest® 5000 System — Analyser and Test kit — provide fast and accurate on-site drug detection. Substances such as opiates, cocaine, cannabinoides, amphetamines as well as designer drugs and tranquilizers based on benzodiazepines can be detected in oral fluid samples or samples from surfaces.” Whether Florida purchases and starts using this drug testing machines in the future is probably a question of “when” rather than “if”.
If you have been arrested, retain an aggressive Polk County criminal lawyer that has experience and knows the law.
I’m ready to stand up and fight for you in court!
Thomas C. Grajek — 863-688-4606
Handling all Polk County felony and misdemeanor drug charges including possession, delivery, sale, and trafficking.